DOLPHIN COVE ASSOCIATION, APPELLANT,
v.
SQUARE D. COMPANY, APPELLEE
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BLUE, Judge.
Dolphin Cove Association, Inc., appeals the trial court’s denial of a motion for leave to amend a complaint to add a prayer for punitive damages. We conclude the reason given by the trial court in denying the motion for leave to amend was not appropriate and therefore, we reverse and remand.
The trial court in the order appealed stated, “that the motion to amend is denied for the reason that plaintiff’s complaint, when measured by the evidence proffered in support of that complaint, fails to state a factual predicate that could permit the imposition of punitive damages under the clear mandate of Florida law.” The parties stipulate this products liability action arose before the effective date of section 768.72, Florida Statutes (1986), which requires an evidentiary basis for pleading punitive damages.
We hold the trial judge abused his discretion in denying the motion on the basis of his perception of the proffered evidence which might be available at trial. Prejudging the evidence is not a proper vehicle for the court’s denial of the motion to amend. Accordingly, we reverse and remand to the trial court for reconsideration of the motion for leave to amend.
FRANK, A.C.J., and PATTERSON, J., concur.
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Wisniewski v. Ireland, 636 So. 2d 587 (Fla. 5th DCA 1994)…GRIFFIN, Judge. Notwithstanding the cases cited by petitioner as authority, including Dolphin Cove Association v. Square D. Co., 616 So. 2d 553 (Fla. 2d DCA 1993), we conclude that an interlocutory order striking a punitive damage claim in a personal injury or wrongful death case is not an appealable non-final order, under Florida Rule of Appellate Procedure 9.130, nor is it reviewable by c…
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Guar. Tr. Life Ins. Co. v. Mel Gross, 656 So. 2d 959 (Fla. 2d DCA 1995)…la. 2d DCA 1995); Manor Care of Fla., Inc. v. Olt, 620 So. 2d 1297 (Fla. 2d DCA 1993). A third panel has reviewed a comparable order under a theory of appellate jurisdiction that was not explained in the opinion. Dolphin Cove Ass’n v. Square D. Co., 616 So. 2d 553 (Fla. 2d DCA 1993). I would request this court to review the issue en banc, except the issue will soon be resolved by the supreme court. See Globe Newspaper Co. v. King, 643 So. 2d 676 (Fla. 1st DCA 1994), review granted, 651 So. 2d 1193 (Fla.1995).…