E.R. TRUCK & EQUIPMENT CORPORATION,

v.

DAVID GOMONT,

PER CURIAM.

We conclude, based on our review of the record, that the trial court complied with the procedural requirements of section 768.72, Florida Statutes (2019). Respondent proffered evidence in support of his punitive damages claim and, after a hearing, the trial court entered an order finding the proffer to be sufficient to support the claim.¹ See Event Depot Corp. v. Frank, 269 So. 3d 559, 563 (Fla. 4th DCA 2019). We, therefore, deny the petition for writ of certiorari.

E.R. Truck & Equipment Corporation v. Gomont, 3D20-42 SCALES, J. (concurring) While I concur in denying the petition for writ of certiorari, I write separately as this case plainly illustrates why, in my view, Florida Rule of Appellate Procedure 9.130(a)(3)’s schedule of appealable, non-final orders should be amended to include orders granting a party’s motion to amend a complaint to add a claim for punitive damages.

In August 2013, respondent David Gomont, the plaintiff below, filed a complaint for retaliatory discharge² against his former employer, petitioner E.R. Truck and Equipment Corporation (“E.R. Truck”). Later, Gomont sought leave to amend his complaint to include a claim for punitive damages, making an evidentiary proffer in support thereof. After conducting a hearing, the trial court entered a written order allowing the amendment, finding “Plaintiff has made a reasonable showing of evidence, through depositions and affidavit[,] that Plaintiff is entitled to plead punitive damages. Fla. Stat. 768.72.” E.R. Truck then sought certiorari review in this Court.

In order to state a claim for punitive damages, the plaintiff must make a reasonable showing, with proffered or record evidence, that a trier of fact, based on clear and convincing evidence, could find the defendant guilty of “intentional misconduct” or “gross negligence.” § 768.72(1)-(2), Fla. Stat. (2013).

Because Gomont’s retaliatory discharge claim asserts an intentional tort, see Scott v. Otis Elevator Co., 572 So. 2d 902, 903 (Fla. 1990), the basis for seeking punitive damages under the statute is “intentional misconduct.” See Bistline v. Rogers, 215 So. 3d 607, 609 (Fla. 4th DCA 2017). “Intentional misconduct” requires that the defendant have “actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” § 768.72(2)(a), Fla. Stat. (2013).

If we were to review the trial court’s order de novo, as an appealable, non-final order, I think we would be compelled to reverse. “Record evidence may support an intentional tort, but not necessarily an award of punitive damages.” Bistline, 215 So. 3d at 609 (quoting Air Ambulance Prof’ls, Inc. v. Thin Air, 809 So. 2d 28, 30 (Fla. 4th DCA 2002)).

To recover punitive damages for “intentional misconduct” under section 768.72(2)(a), the defendant’s conduct “must be egregious and sufficiently reprehensible to rise to the level of truly culpable behavior deserving of punishment.” Id.

The evidence proffered below by Gomont may support

Gomont’s retaliatory discharge claim, but, in my view, it is wholly insufficient to support a jury’s determination that E.R. Truck engaged in “intentional misconduct” so as to warrant an award of punitive damages. Notwithstanding the “game-changing” nature³ of the challenged order allowing the punitive damages claim, we are not reviewing this case de novo as an appealable, non-final order. We are bound by the far more exacting certiorari standard. See TRG Desert Inn Venture, Ltd. v. Berezovksy, 194 So. 3d 516, 519-20 (Fla. 3d DCA 2016).

Our review, therefore, is not whether Gomont’s proffered evidence met the threshold for recovering punitive damages under section 768.72, but whether the trial court departed from the essential requirements of the law; that is, whether the trial court applied the incorrect law or failed to comply with the procedural requirements of section 768.72. Id. As the majority states, the trial court complied with the procedural requirements of section 768.72. We, therefore, are required to deny the petition despite the insufficiency of Gomont’s proffer to support his motion to add a punitive damages claim.

E.R. Truck & Equipment Corporation v. Gomont, 3D20-42 GORDO, J., concurring specially, I write separately to join in my colleague’s concurring opinion insofar as it recommends that Florida Rule of Appellate Procedure 9.130(a)(3) should be amended to include orders granting a party’s motion to amend a complaint to add a claim for punitive damages. I express no opinion as to whether sufficient evidence exists in the record to allow amendment of the pleadings to include a claim for punitive damages.