KOHL'S DEPARTMENT STORE, INC.

v.

DOLORES YOUNG

PER CURIAM.

Petitioner, Kohl’s Department Store, Inc., seeks certiorari relief from an order permitting Respondent, Dolores Young, to amend her complaint to demand punitive damages. Because the trial court departed from the essential requirements of law by applying an incorrect legal standard, we grant Kohl’s writ and quash the order. In 2015, Respondent attempted to return or exchange items at a Kohl’s during two separate visits. A Kohl’s employee suspected these transactions were fraudulent. Consequently, a Kohl’s loss prevention officer detained

Respondent while law enforcement responded. Respondent claims the loss prevention officer verbally harassed her, denied her needed prescription medication, refused her requests to use the restroom, and prevented her attorney from joining her. Although law enforcement arrested her, the state attorney declined to prosecute.

In 2017, following dismissal of her criminal charges, Respondent filed suit against Kohl’s for false imprisonment, intentional infliction of emotional distress, negligence, and malicious prosecution. In 2019, Respondent sought leave to amend her complaint to demand punitive damages. After a hearing, the trial court granted her motion.

We may grant Kohl’s request for certiorari only if it establishes: (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial, (3) that cannot be corrected on postjudgment appeal. State Farm Mut. Auto. Ins. v. Knapp, 234 So. 3d 843, 848 2 (Fla. 5th DCA 2018).

We first examine the second and third elements to determine our jurisdiction. See Holden Cove, Inc. v. 4 Mac Holdings Inc., 948 So. 2d 1041, 1041 (Fla. 5th DCA 2007).

We have jurisdiction over this case because it concerns the trial court’s compliance with the procedural prerequisites for a litigant to assert punitive damages claims.1 See Varnedore v. Copeland, 210 So. 3d 741, 744 (Fla. 5th DCA 2017); see also Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071, 1076 (Fla. 3d DCA 2019) (finding that “prospect of intrusive financial discovery following a trial court’s authorization for an amendment to add a claim for punitive damages” satisfies certiorari jurisdictional requirements).

The trial court departed from the essential requirements of law when it applied the incorrect legal standard to determine whether to allow

Respondent to pursue punitive damages. At Respondent’s urging, the trial court applied the general and liberal standard to determine whether to permit leave to amend the complaint to add a punitive damages claim. See Fla. R. Civ. P. 1.190(a). In doing so, it relied on authority applying the liberal standard to a typical pleading amendment. See Cooper v. Town of Jupiter, 1 The Florida Supreme Court recently amended Florida Rule of Appellate Procedure 9.130. In re Amend. to Fla. Rule of App. Proc. 9.130, 47 Fla.

L. Weekly S1 (Fla. Jan. 6, 2022). Beginning April 1, 2022, parties may seek interlocutory appeal of nonfinal orders granting or denying leave to amend a complaint to assert a punitive damages claim. Id. at S1. 3 52 So. 3d 680 (Fla. 4th DCA 2010). The Cooper court reversed a dismissal with prejudice based on a plaintiff’s failure to request leave to file an amended complaint before filing it. Id. at 682. The case did not involve punitive damages, which has more stringent, detailed requirements. See § 768.72, Fla. Stat. (2019); Fla. R. Civ. P. 1.190(f). Because the trial court did not comply with the more stringent requirements to permit Respondent leave to pursue punitive damages, we grant Kohl’s petition and quash the order on appeal.

PETITION GRANTED; ORDER QUASHED.

SASSO and TRAVER, JJ., concur. EDWARDS, J., concurs and concurs specially, with opinion. 4

Case No. 5D21-691 LT Case No. 2017-CA-009474 EDWARDS, J., concurring specially.

I fully agree with the majority opinion but write to point out that the petition could also have been granted because Respondent’s amended complaint failed to adequately plead a cause of action for which punitive damages could be awarded against Kohl’s. Rule 1.190(a) mandates that a party moving to amend its complaint shall attach the proposed amended complaint to its motion to amend. Rule 1.110(b)(2) requires the complaint to contain “a short and plain statement of the ultimate facts showing that the pleader is entitled to [the] relief” which it demands.

The requisite “ultimate facts” to pursue punitive damages are set forth in section 768.72, Florida Statutes (2019). Here, Respondent has not sued any of Kohl’s employees. Where a plaintiff, as Respondent does here, seeks punitive damages against an employer, corporation, or other legal entity for the conduct of its employee or agent, it must prove that both the employee’s and corporation’s conduct was sufficiently culpable.

First, section 768.72(3) requires Respondent to prove that the conduct of the defendant’s employee or agent constituted intentional misconduct or gross negligence as defined in 768.72(2).

Second, subsections 768.72(3)(a–c) require Respondent to also prove that the employer, corporation, or other legal entity either “actively 5 and knowingly participated in such conduct”; or its “officers, directors, or managers . . . knowingly condoned, ratified, or consented to such conduct”; or that it “engaged in conduct that constituted gross negligence . . . that contributed to the loss, damages, or injury” claimed by Respondent.

Respondent’s proposed amended complaint does not contain a statement of ultimate facts which would support a claim for punitive damages under section 768.72 against Kohl’s. Conclusory allegations in the proposed amended complaint that Kohl’s conduct was outrageous and either intentional or grossly negligent do not suffice. See Dr. Navarro's Vein Ctr. of Palm Beach, Inc. v. Miller, 22 So. 3d 776, 777 (Fla. 4th DCA 2009).

Respondent’s discussion during the hearing of how Kohl’s might be vicariously liable is no substitute for the lack of such allegations in the proposed amended complaint. See Varnedore v. Copeland, 210 So. 3d 741, 745 (Fla. 5th DCA 2017) (“Absent sufficient allegations, there would be neither a reason nor a framework for analyzing the proffered evidentiary basis for a punitive damages claim.”).

Accordingly, because the proposed amended complaint was deficient, the motion for leave to amend should have been denied on that basis as well. See Keen v. Jennings, 327 So. 3d 435, 438 (Fla. 5th DCA 2021) (citing Varnedore, 210 So. 3d at 744–45). 6