DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
OMEGA TITLE NAPLES, LLC, d/b/a Dunn Title and SCOTT DASCANI,
Petitioners,
v.
ROGER BUTSCHKY and SHERYL LYNN BUTSCHKY,
Respondents.
No. 2D19-1151
September 10, 2021
BY ORDER OF THE COURT:
Petitioners' motion for written opinion is granted. The prior
opinion dated November 20, 2019, is withdrawn, and the attached
opinion is issued in its place. No further motions for rehearing will
be entertained.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL, CLERK DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
Petition for Writ of Certiorari to the Circuit Court for Collier County; Elizabeth V. Krier, Judge.
Roy D. Wasson of Wasson & Associates, Chartered, Miami, and Leland W. Wilson of McCullough Legal Services, LLC, Fort Myers, for Petitioners.
Kimberly L. Boldt and Ryan C. Tyler of Boldt Law Firm, Boca Raton, and Michael Petruccelli of Petruccelli Law, Fort Lauderdale, for Respondents.
PER CURIAM. Omega Title Naples, LLC, and its CEO, Scott Dascani, seek
certiorari review of an order granting Roger and Sheryl Butschky
leave to amend their complaint to add a claim for punitive damages.
We dismiss the petition.
The underlying proceeding arose after fraudsters allegedly
deceived Omega Title into wiring the proceeds of the sale of the
Butschkys' home to a different bank account number than the one
the Butschkys had provided. After conducting several depositions,
the Butschkys sought leave to amend their complaint to add a
claim for punitive damages. Following a hearing, the trial court
granted the motion. However, neither the court's oral ruling nor its
written order stated its basis for granting the Butschkys' motion; in
both rulings the court simply stated that the motion was granted.
Omega Title now argues in this petition for writ of certiorari
that the trial court erred in granting the motion without making
affirmative findings that the Butschkys had alleged a reasonable
basis for punitive damages. The rationale for this argument begins
with section 768.72(1), Florida Statutes (2018), which provides that
"no claim for punitive damages shall be permitted unless there is a
reasonable showing by evidence in the record or proffered by the 2 claimant which would provide a reasonable basis for recovery of
such damages." Citing a line of cases beginning with the Fourth
District's decision in Henn v. Sandler, 589 So. 2d 1334 (Fla. 4th
DCA 1991), Omega Title contends that a trial court must expressly
make an affirmative finding on the record that the statutory
standard has been met. On that point, the Henn court stated that
it "read[s] section 768.72 as creating a positive legal right in a party
not to be subjected to financial worth discovery until the trial court
has first made an affirmative finding that there is a reasonable
evidentiary basis for the punitive damages claim to go to the jury."
Id. at 1335; see also Petri Positive Pest Control, Inc. v. CCM Condo.
Ass'n, 174 So. 3d 1122, 1122 (Fla. 4th DCA 2015) (following Henn).
This view has since been adopted by the Third District in Key West
Convalescent Ctr., Inc. v. Doherty, 619 So. 2d 367, 369 (Fla. 3d DCA
1993), and by the Fifth District in Varnedore v. Copeland, 210 So.
3d 741, 747–48 (Fla. 5th DCA 2017).
Since we issued our initial order summarily denying Omega
Title's petition, our court has undertaken a similar approach to the
one taken by the Third, Fourth, and Fifth Districts. We have held
that when a trial court determines that a plaintiff has presented 3 sufficient evidence to support a claim for punitive damages "the trial
court must identify the admissible evidence proffered by the
plaintiff on the record within the order and/or articulate on the
record how the evidence supports a reasonable basis to believe the
claimant can demonstrate by clear and convincing evidence that
recovery of punitive damages is warranted." E. Bay NC, LLC v.
Reddish, 306 So. 3d 1225, 1227 (Fla. 2d DCA 2020). We explained
the reasoning behind this policy as follows:
Absent oral findings in the record which establish entitlement to plead punitive damages, a boilerplate order that parrots the provisions of the statute without identifying the admissible evidence adduced at the evidentiary hearing is insufficient. Such an order renders the appellate court unable to identify what, if any, admissible evidence was relied upon to make the determination. Identifying the evidence within the order will enable an appellate court to better determine procedural compliance with the statute.
Id.
The trial court's oral and written orders in this case did not
make any findings of fact or otherwise state the basis on which it
granted the Butschkys' motion. However, we find this error to be
essentially harmless. As we stated in Reddish, the purpose of
4 specific findings is to enable appellate review to ensure that the trial
court complied with the procedural requirements of section 768.72.
See generally Globe Newspaper Co. v. King, 658 So. 2d 518, 520
(Fla. 1995) (holding that certiorari is available to review whether the
trial court has followed the procedures set forth in section 768.72,
"but not so broad as to encompass review of the sufficiency of the
evidence considered in that inquiry"); Beverly Health & Rehab.
Servs., Inc. v. Meeks, 778 So. 2d 322, 325 (Fla. 2d DCA 2000)
(noting that "Globe Newspaper gives us the power in a certiorari
proceeding to enforce the procedures associated with section
768.72" and stating that "the trial court's decision withstands our
standard of review [on certiorari] so long as the decision is
consistent with the statute and the court has satisfied the
requirements of due process"). In this case we can discern from the
record that the court followed all applicable procedures and applied
the correct standard in granting the Butchskys' motion. As a
result, the failure to make express findings was harmless.
Petition dismissed.
KELLY and SMITH, JJ., Concur. NORTHCUTT, J., Concurs with opinion.
5 NORTHCUTT, J., Concurring.
I concur in the dismissal of Omega Title's petition, but I write
separately to express disagreement with the growing chorus of
cases, starting with Henn v. Sandler, 589 So. 2d 1334 (Fla. 4th DCA
1991), and continuing through E. Bay NC, LLC v. Reddish, 306 So.
3d 1225, 1227 (Fla. 2d DCA 2020), holding that a trial court must
make express findings when granting leave to add a claim for
punitive damages.
Neither the applicable statute nor the associated rule of
procedure require a court to announce specific findings beyond
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DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
OMEGA TITLE NAPLES, LLC, d/b/a Dunn Title and SCOTT DASCANI,
Petitioners,
v.
ROGER BUTSCHKY and SHERYL LYNN BUTSCHKY,
Respondents.
No. 2D19-1151
September 10, 2021
BY ORDER OF THE COURT:
Petitioners' motion for written opinion is granted. The prior
opinion dated November 20, 2019, is withdrawn, and the attached
opinion is issued in its place. No further motions for rehearing will
be entertained.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL, CLERK DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
Petition for Writ of Certiorari to the Circuit Court for Collier County; Elizabeth V. Krier, Judge.
Roy D. Wasson of Wasson & Associates, Chartered, Miami, and Leland W. Wilson of McCullough Legal Services, LLC, Fort Myers, for Petitioners.
Kimberly L. Boldt and Ryan C. Tyler of Boldt Law Firm, Boca Raton, and Michael Petruccelli of Petruccelli Law, Fort Lauderdale, for Respondents.
PER CURIAM. Omega Title Naples, LLC, and its CEO, Scott Dascani, seek
certiorari review of an order granting Roger and Sheryl Butschky
leave to amend their complaint to add a claim for punitive damages.
We dismiss the petition.
The underlying proceeding arose after fraudsters allegedly
deceived Omega Title into wiring the proceeds of the sale of the
Butschkys' home to a different bank account number than the one
the Butschkys had provided. After conducting several depositions,
the Butschkys sought leave to amend their complaint to add a
claim for punitive damages. Following a hearing, the trial court
granted the motion. However, neither the court's oral ruling nor its
written order stated its basis for granting the Butschkys' motion; in
both rulings the court simply stated that the motion was granted.
Omega Title now argues in this petition for writ of certiorari
that the trial court erred in granting the motion without making
affirmative findings that the Butschkys had alleged a reasonable
basis for punitive damages. The rationale for this argument begins
with section 768.72(1), Florida Statutes (2018), which provides that
"no claim for punitive damages shall be permitted unless there is a
reasonable showing by evidence in the record or proffered by the 2 claimant which would provide a reasonable basis for recovery of
such damages." Citing a line of cases beginning with the Fourth
District's decision in Henn v. Sandler, 589 So. 2d 1334 (Fla. 4th
DCA 1991), Omega Title contends that a trial court must expressly
make an affirmative finding on the record that the statutory
standard has been met. On that point, the Henn court stated that
it "read[s] section 768.72 as creating a positive legal right in a party
not to be subjected to financial worth discovery until the trial court
has first made an affirmative finding that there is a reasonable
evidentiary basis for the punitive damages claim to go to the jury."
Id. at 1335; see also Petri Positive Pest Control, Inc. v. CCM Condo.
Ass'n, 174 So. 3d 1122, 1122 (Fla. 4th DCA 2015) (following Henn).
This view has since been adopted by the Third District in Key West
Convalescent Ctr., Inc. v. Doherty, 619 So. 2d 367, 369 (Fla. 3d DCA
1993), and by the Fifth District in Varnedore v. Copeland, 210 So.
3d 741, 747–48 (Fla. 5th DCA 2017).
Since we issued our initial order summarily denying Omega
Title's petition, our court has undertaken a similar approach to the
one taken by the Third, Fourth, and Fifth Districts. We have held
that when a trial court determines that a plaintiff has presented 3 sufficient evidence to support a claim for punitive damages "the trial
court must identify the admissible evidence proffered by the
plaintiff on the record within the order and/or articulate on the
record how the evidence supports a reasonable basis to believe the
claimant can demonstrate by clear and convincing evidence that
recovery of punitive damages is warranted." E. Bay NC, LLC v.
Reddish, 306 So. 3d 1225, 1227 (Fla. 2d DCA 2020). We explained
the reasoning behind this policy as follows:
Absent oral findings in the record which establish entitlement to plead punitive damages, a boilerplate order that parrots the provisions of the statute without identifying the admissible evidence adduced at the evidentiary hearing is insufficient. Such an order renders the appellate court unable to identify what, if any, admissible evidence was relied upon to make the determination. Identifying the evidence within the order will enable an appellate court to better determine procedural compliance with the statute.
Id.
The trial court's oral and written orders in this case did not
make any findings of fact or otherwise state the basis on which it
granted the Butschkys' motion. However, we find this error to be
essentially harmless. As we stated in Reddish, the purpose of
4 specific findings is to enable appellate review to ensure that the trial
court complied with the procedural requirements of section 768.72.
See generally Globe Newspaper Co. v. King, 658 So. 2d 518, 520
(Fla. 1995) (holding that certiorari is available to review whether the
trial court has followed the procedures set forth in section 768.72,
"but not so broad as to encompass review of the sufficiency of the
evidence considered in that inquiry"); Beverly Health & Rehab.
Servs., Inc. v. Meeks, 778 So. 2d 322, 325 (Fla. 2d DCA 2000)
(noting that "Globe Newspaper gives us the power in a certiorari
proceeding to enforce the procedures associated with section
768.72" and stating that "the trial court's decision withstands our
standard of review [on certiorari] so long as the decision is
consistent with the statute and the court has satisfied the
requirements of due process"). In this case we can discern from the
record that the court followed all applicable procedures and applied
the correct standard in granting the Butchskys' motion. As a
result, the failure to make express findings was harmless.
Petition dismissed.
KELLY and SMITH, JJ., Concur. NORTHCUTT, J., Concurs with opinion.
5 NORTHCUTT, J., Concurring.
I concur in the dismissal of Omega Title's petition, but I write
separately to express disagreement with the growing chorus of
cases, starting with Henn v. Sandler, 589 So. 2d 1334 (Fla. 4th DCA
1991), and continuing through E. Bay NC, LLC v. Reddish, 306 So.
3d 1225, 1227 (Fla. 2d DCA 2020), holding that a trial court must
make express findings when granting leave to add a claim for
punitive damages.
Neither the applicable statute nor the associated rule of
procedure require a court to announce specific findings beyond
granting or denying a plaintiff's motion to add a punitive damages
claim. See § 768.72(1), Fla. Stat. (2018); Fla. R. Civ. P. 1.190(f).
The First District recently addressed this issue in Watt v. Lo, 302
So. 3d 1021 (Fla. 1st DCA 2020), and recognized that the statute
and rule simply do not compel the affirmative finding that Henn and
its progeny have required:
[N]othing in the plain language of section 768.72(1) requires a trial court to make express or affirmative findings when determining whether to permit a claimant to assert a punitive damages claim. All that is required is that the claimant make the necessary showing based on evidence in the 6 record or proffered by the claimant. § 768.72, Fla. Stat. Then, as stated in Globe Newspaper, the trial court must make a "determination" that the claimant made the necessary evidentiary showing.
Id. at 1024–25 (footnote omitted).
I agree with the First District's reading of the law. Absent a
statutory requirement or other compelling reason, findings of fact
simply are not a necessary component of a judgment or order. See,
e.g., New Nautical Coatings, Inc. v. Scoggin, 731 So. 2d 145, 146
(Fla. 4th DCA 1999) ("Because the trial court made no specific
findings of fact in the final judgment, this court must 'accept the
facts to be those shown by that evidence most favorable' to
Scoggins, the prevailing party." (quoting S. Bell Tel. & Tel. Co. v.
Broward Cnty., 665 So. 2d 272, 274 (Fla. 4th DCA 1995))); Town of
Jupiter v. Alexander, 747 So. 2d 395, 400 (Fla. 4th DCA 1998)
(refusing to reverse a judgment due to a lack of factual findings and
noting that "[w]here [findings] are absent, the appellate court must
determine whether, based upon the record, the proper analysis
would have produced the result reached by the trial court").
Further, knowing the facts upon which the trial court relied
when granting leave to amend would be of little benefit in the 7 narrow certiorari review that we conduct here. As explained in
Globe Newspaper, we are limited to reviewing procedural matters
and cannot review the sufficiency of the evidence supporting a
plaintiff's claim for punitive damages. See 658 So. 2d at 520.
Thus, findings of fact regarding the evidence presented ordinarily
would not further our review in any meaningful way.
In sum, I agree that the lack of findings of facts in this case
does not warrant certiorari relief even under the caselaw that
requires them. But I do not believe that such findings were
required in the first place.