MENADA, INC., ETC., ET AL.

v.

GABRIELA AREVALO, ETC.

Third District Court of Appeal State of Florida Opinion filed June 18, 2025. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D23-1625 Lower Tribunal No. 2019-37110-CA-01 ________________ Menada, Inc., etc., et al., Appellants, vs. Gabriela Arevalo, etc., Appellee. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Lourdes Simon, Judge. Lewis Brisbois Bisgaard & Smith LLP, and Todd R. Ehrenreich, and Jeffrey R. Geldens, for appellants.

Podhurst Orseck, P.A., and Christina H. Martinez; Scott M. Sandler P.A., and Scott M. Sandler and Logan W. Sandler, for appellee. Before LINDSEY, MILLER, and GORDO, JJ.

LINDSEY, J.

Appellants Menada, Inc. and Belinda Meruelo appeal from a non-final order granting Appellee Gabriela Arevalo’s motion for leave to amend to

I.

BACKGROUND

The underlying wrongful death action stems from a fire at Seacoast Suites, a multi-story Miami Beach hotel, that resulted in the death of Arevalo’s legally blind adult son. Menada owns and operates Seacoast, and Meruelo was Menada’s sole shareholder when the fire occurred. At all relevant times, Arevalo and her son were long-term tenants at Seacoast. According to the operative Complaint, the Defendants engaged in intentional misconduct and gross negligence due to “flagrant and persistent violations of applicable fire safety codes and orders of governing authorities.” The Complaint traces the history of these violations from 1998, when Seacoast was cited for operating without fire sprinklers, to the present. The Complaint alleges that Seacoast ignored numerous administrative orders

1 We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(G) (authorizing appellate review of non-final orders that “grant or deny a motion for leave to amend to assert a claim for punitive damages”).

Arevalo’s proffer also contains numerous deposition transcripts, affidavits, and various other documents, including the deposition of a Seacoast security guard who was on duty when the fire occurred. The guard testified that he had previously worked at the Hotel Deauville, a sister property, where he was instructed “whenever the fire alarm goes off to silence the alarm and then go and check.”³ The guard recounted an incident where the alarm was silenced, and the fire chief showed up and told staff not to silence the alarm because it was dangerous. After this incident, the guard’s supervisor continued to instruct him to silence the fire alarms. Shortly after the guard started working at Seacoast, there was another fire alarm incident, unrelated to the one at issue here. The guard did not silence the alarm, as instructed, and instead went directly to the floor where

2 According to Arevalo’s deposition, she and her son originally rented a room on the 10th floor when they became tenants in 2009. In 2018, Seacoast moved Arevalo and her son to the 15th floor. Arevalo alleges the critical safety issue on the 15th floor was still present when she moved and when the fire occurred because Seacoast had not installed fire sprinklers.

3 The proffer also includes the deposition transcript of another Deauville security guard, who likewise testified about the silencing policy.

And when she tell[s] me that I in turn let her know that it happened at the Deauville before and the fire chief was mad about it, said it’s not safe to do so . . . .

. . . .

Her response was, “The Deauville is no more. This is the Seacoast Suites. If you want to continue to work here, you need to learn the system and silence the alarm.

The guard also testified about what happened with the fire alarm on the night of the fire that resulted in Mr. Arevalo’s death: At the time I was standing outside next to the valet booth and I heard a beeping sound coming from the alarm system, the panel . . . .

. . . .

I went there, [took] a look at it, and [a housekeeper] was there and I told him not to let the alarms go off because the owner [didn’t] want the excitement at our building and that she had instructed me to silence it.

After silencing the fire alarm, the guard testified that he went up to the 15th floor, noticed there was smoke in the halls, and called 911.

6

In opposition to Arevalo’s Motion to Amend, Menada and Meruelo argued that the fire code violations only pertained to hotel operations not apartment building operations for long-term tenants. They also argued there was no causal relationship between the alleged silencing policy and the fire department response time. And finally, they claimed that the alleged conduct did not rise to the level of punitive conduct. In support, Menada and Meruelo submitted an evidentiary counter-proffer.

Following a hearing, the trial court granted Arevalo’s Motion to Amend. Menada and Meruelo timely appealed.

II.

ANALYSIS

Our analysis is governed by the statutory framework in section 768.72(1), Florida Statutes (2024), which sets forth the pleading standard for punitive damages: 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.

Our standard of review is de novo. See, e.g., McLane Foodservice Inc. v. Wool, 400 So. 3d 757, 760 (Fla. 3d DCA 2024). “Our de novo review . . . tests the sufficiency of the proffer in the light most favorable to the moving

Section 768.72 creates “a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995). “The statute requires the trial court to act as a gatekeeper and precludes a claim for punitive damages where there is no reasonable evidentiary basis for recovery.” Bistline v. Rogers, 215 So. 3d 607, 611 (Fla. 4th DCA 2017).

Here, the trial court determined, based on the extensive proffer, that Arevalo made a reasonable showing by proffer that would provide a reasonable basis for recovery of punitive damages. We agree. “This isn't the time to prove the case, or even to determine that the evidence proffered itself constitutes ‘clear and convincing evidence . . . that the defendant was personally guilty of intentional misconduct or gross negligence.’” McLane, 400 So. 3d at 760 (Fla. 3d DCA 2024) (quoting § 768.72(2)).

We recognize that courts have taken different approaches in determining whether and to what extent a trial court may weigh the evidence at the punitive damages pleading stage. Compare Manheimer v. Fla. Power

4 Compare also KIS Grp., LLC v. Moquin, 263 So. 3d 63, 66 (Fla. 4th DCA 2019) (“Unlike consideration of a motion for summary judgment which precludes the court from weighing the evidence or reaching conclusions therefrom, section 768.72 necessarily requires the court to weigh the evidence and act as a factfinder.”), with Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 34 (Fla. 4th DCA 2023) (en banc), review granted, No. SC2024-0058, 2024 WL 4948685 (Fla. Dec.³, 2024) (“We stress that the preliminary determination of whether the movant made a reasonable showing by evidence of a reasonable basis for allowing a punitive damages claim is to be made without weighing evidence or witness credibility.”).

III.

CONCLUSION

Because Arevalo made a reasonable showing by proffer, which would provide a reasonable basis for recovery of such damages, we affirm the order granting leave to amend to assert claims for punitive damages. MILLER, J., concurs.

5 Our opinion is limited to the issue before us, which is whether Arevalo satisfied the punitive damages pleading requirement. We express no opinion on the merits of Arevalo’s punitive damages claims. See § 768.725 (“In all civil actions, the plaintiff must establish at trial, by clear and convincing evidence, its entitlement to an award of punitive damages. The ‘greater weight of the evidence’ burden of proof applies to a determination of the amount of damages.”).

10

Menada, Inc., etc., et al. v. Gabriela Arevalo, etc. Case No. 3D23-1625 GORDO, J., specially concurring. I agree with the majority that the trial court properly granted the motion for leave to amend to assert punitive damages. I write separately to clarify several issues which should be discussed. First, we have often held that punitive damages are reserved for the worst type of conduct. See BDO Seidman, LLP v. Banco Espirito Santo Int’l, 38 So. 3d 874, 876 (Fla. 3d DCA 2010) (“Punitive damages are a form of extraordinary relief for acts and omissions so egregious as to jeopardize not only the particular plaintiff in the lawsuit, but the public as a whole, such that a punishment—not merely compensation—must be imposed to prevent similar conduct in the future[.]”); KIS Grp., LLC v. Moquin, 263 So. 3d 63, 65- 66 (Fla. 4th DCA 2019) (“[P]unitive damages are reserved for truly culpable behavior and are intended to ‘express society’s collective outrage.’” (quoting Imperial Majesty Cruise Line, LLC v. Weitnauer Duty Free, Inc., 987 So. 2d 706, 708 (Fla. 4th DCA 2008))); Cleveland Clinic Fla. Health Sys. Nonprofit Corp. v. Oriolo, 357 So. 3d 703, 706 (Fla. 4th DCA 2023) (“[P]unitive damages are reserved for truly culpable conduct . . . . so outrageous in character, and so extreme in degree that the facts of the case to an average

6 The Perlmutter court certified a question of great public importance regarding the issue of whether a trial court, in adjudicating a motion for leave to assert a claim for punitive damages, must make a preliminary determination of whether a jury could find by clear and convincing evidence that punitive damages are warranted. Perlmutter, 376 So. 3d at 38. It is noteworthy that this Court has never applied that standard.

7 To the extent any portion of Manheimer could be construed as doing so, “[a]ny statement of law in a judicial opinion that is not a holding is dictum.” Pedroza v. State, 291 So. 3d 541, 547 (Fla. 2020); see also Lewis v. State, 34 So. 3d 183, 186 (Fla. 1st DCA 2010) (“When a court makes a pronouncement of law that is ultimately immaterial to the outcome of the case, it cannot be said to be part of the holding in the case.”); Churchill v. DBI Servs., LLC, 361 So. 3d 896, 904 (Fla. 1st DCA 2023) (“We are not bound by dicta, only holdings.”). It is inappropriate to invoke our extraordinary en banc jurisdiction where dicta is the basis for en banc consideration. See Fla. R. App. P. 9.331(a) (“En banc hearings and rehearings shall not be ordered unless the case or issue is of exceptional importance or unless necessary to maintain uniformity in the court’s decisions.”); Fleischer v. Hi-Rise Homes, Inc., 536 So. 2d 1101, 1102 (Fla. 4th DCA 1988) (“[S]ince the offending language was not the holding . . . it is not necessary to consider excising that language en banc, in order to ‘maintain uniformity in the court’s decisions.’” (quoting Fla. R. App. P. 9.331(a))).