ZACHARY K. DEATERLY

v.

RODNEY M. JACOBSON

SLEET, Judge. Zachary Deaterly seeks a writ of certiorari to quash the trial court's order granting Rodney Jacobson's motion for leave to amend his complaint to add a claim for punitive damages. Because we determine that the successor trial judge complied with

- 2 - the procedural requirements of section 768.72, Florida Statutes (2018), and Florida Rule of Civil Procedure 1.190(f), we deny the petition. Jacobson filed an action against Deaterly for intentional infliction of emotional distress, negligence, assault, and trespass to chattels arising from an incident wherein Deaterly shot and killed Jacobson's dog. Deaterly filed an answer and defenses asserting self-defense. Following extensive discovery, Jacobson filed his motion for leave to amend his complaint to add a claim for punitive damages and attached his proposed amended complaint. Deaterly filed his response and objection to the motion, and the matter was set for a hearing. On October 19, 2018, the trial court conducted an evidentiary hearing wherein it reviewed depositions, affidavits, and heard argument of counsel. Deaterly argued that the trial court could grant the motion only if it found that Jacobson established a reasonable basis for recovery of punitive damages under a clear and convincing evidence standard. Jacobson countered that section 768.72(1) simply requires a plaintiff to make a reasonable showing by evidence that there is a reasonable basis for recovery of such damages. The trial court denied the motion, expressly finding that "the Plaintiff has failed to establish a reasonable factual basis that, based on clear and convincing evidence, the trier of fact would find the Defendant, Zachary Deaterly, personally guilty of intentional misconduct or gross negligence, as those terms are defined under Fla. Stat. 768.72." (Emphasis added.) Thereafter, a successor judge was rotated into the civil division. Following more discovery, Jacobson filed a motion for reconsideration and renewed his motion for leave to amend his complaint to add a claim for punitive damages. On January 13,

- 3 - 2020, the trial court conducted an evidentiary hearing. The successor judge reviewed the same evidence submitted to the predecessor judge and also reviewed deposition transcripts of Deaterly, his wife, Kimberly Albright-Good, and James Crosby. Deaterly again argued that the proper standard was the clear and convincing standard. The trial court disagreed and stated that section 768.28(1) is subject to a "reasonable showing" test and does not require clear and convincing evidence. After concluding it was appropriate for a successor judge to review and modify the interlocutory rulings of his predecessor, the trial court granted Jacobson's motion. The judge made specific findings and concluded that Jacobson made a reasonable showing by presenting evidence that there was a reasonable basis for recovery of punitive damages. Deaterly now seeks certiorari review of this order. To be entitled to certiorari relief, Deaterly "must establish (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." See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995). The last two elements are jurisdictional and must be analyzed before the court may even consider the first element. Id. This court has certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section 768.72. Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995). This jurisdiction is limited to review for compliance with the procedural requirements of the statute and does not include a review of the sufficiency of the evidence considered by the trial court. Id. at 520. When a trial court has complied with procedural requirements of the statute, certiorari should

- 4 - not be granted. Id.; see also Stock Dev., LLC v. Ulrich, 7 So. 3d 582, 583 (Fla. 2d DCA 2009); Beverly Health & Rehab. Servs., Inc. v. Meeks, 778 So. 2d 322, 325 (Fla. 2d DCA 2000). When a plaintiff files a motion for leave to amend a complaint to add a claim for punitive damages in a civil action, the trial court must comply with section 768.72. It provides: (1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. (2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. (Emphasis added.) Additionally, Florida Rule of Civil Procedure 1.190(f) provides that "[a] motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages." Both the statute and the rule clearly express the burden of proof necessary at the pleading stage. Deaterly conflates the plaintiff's burden of proof at the pleading stage with the burden of proof at trial. The legislature has written section 768.72(1) and (2) such that each subsection applies to distinct stages of the litigation process. The legislature

- 5 - has made it clear what is required for a claimant to plead punitive damages in subsection (1) and the burden of proof upon the claimant at trial in subsection (2). Under subsection (1), a trial court can allow a claimant to add a count for punitive damages after reviewing the evidence and concluding there is a reasonable basis for recovering such damages. It is the plaintiff's burden to submit evidence and make a "reasonable showing" that establishes a reasonable basis for recovering punitive damages. See Varnedore v. Copeland, 210 So. 3d 741, 747-48 (Fla. 5th DCA 2017). Subsection (2) clearly expresses the quantum of evidence required at trial to find a defendant liable for punitive damages. The basis for awarding punitive damages against individual defendants is "if the trier of fact, based upon clear and convincing evidence, finds the defendant personally guilty of intentional misconduct." § 768.72(2). Subsection (1) does not mandate that a trial court require a claimant to prove the entitlement to punitive damages by clear and convincing evidence at the pleading stage. Nor does the statute expressly require the trial court to apply subsection (2) when reviewing a motion to amend the pleadings to add a count for punitive damages. Such a result would circumvent the statute and impair a claimant's ability to plead punitive damages, and no court of this state has the discretion "to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications." Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (emphasis omitted) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968)). In the instant case, the successor trial judge had the authority to review, vacate, and/or modify the predecessor's interlocutory rulings. Because the original trial

- 6 - judge had not entered a final judgment in the case, the successor judge could modify his own previous rulings and those of his predecessor. See Tingle v. Dade Cty. Bd. of Cty. Comm'rs, 245 So. 2d 76, 78 (Fla. 1971); Allegro at Boynton Beach, L.L.C. v. Pearson, 287 So. 3d 592, 598 (Fla. 4th DCA 2019). And when the successor trial judge determined that his predecessor applied the incorrect standard to the motion for leave to amend, he had authority to modify the previous order and grant the motion. Accordingly, we conclude that the successor trial judge complied with the procedural requirements of section 768.72 and rule 1.190(f) in granting the motion for leave to amend to add a claim for punitive damages, and we deny the petition for writ of certiorari. Petition denied. SILBERMAN and VILLANTI, JJ., Concur.