MARCIA LEVINE

v.

ROSEMARY LEVAI, ETC., ET AL.

Third District Court of Appeal State of Florida Opinion filed December 31, 2025. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D24-2290 Lower Tribunal No. 24-10094-CA-01 ________________ Marcia Levine, Appellant, vs. Rosemary Levai, etc., et al., Appellees. An Appeal from a non-final order from the Circuit Court for Miami- Dade County, David Craig Miller, Judge. Kubicki Draper, P.A., and Barbara E. Fox, for appellant. Wolfe Law Miami, P.A., and Richard C. Wolfe; Reed Smith LLP, and Lara T. Gatz, for appellees. Before FERNANDEZ, MILLER and BOKOR, JJ.

BOKOR, J.

2

Rosemary and Max Levai are the surviving wife and son of Pierre Levai. They filed suit against Paul Cowan, a lawyer, and Marcia Levine, Pierre’s longtime girlfriend, in a dispute over Pierre’s estate. The complaint alleges that Cowan and Levine defrauded the estate by manipulating Pierre while he was seriously ill with dementia; it includes claims for elder abuse, conversion, civil conspiracy, interference with inheritance, and prays for declaratory relief regarding the validity of certain testamentary documents.

On November⁴, 2024, the Levais sought leave to amend the pleadings by adding claims for punitive damages. The motion to amend the pleadings did not attach a proposed amended complaint. But it did proffer an extensive narrative concerning Cowan and Levine’s actions during Pierre’s final days. It also speculated as to the observations, beliefs, and intentions of third parties. The proffer ultimately rested on the Levais’ written affirmation: “I hereby verify that to the best of my knowledge each of the foregoing facts are true and correct.”¹

3

A hearing on the motion to amend was set for December 17, 2024. Five days before the hearing, Cowan and Levine moved to strike the motion, arguing that the failure to attach the proposed amended complaint rendered the motion defective. The Levais filed the proposed amended complaint later that day. When the hearing came up as scheduled five days later, the court granted the Levais leave to amend the complaint and assert claims for punitive damages. Cowan and Levine filed this timely appeal.

We have jurisdiction to review an order granting leave to amend the pleadings to add a claim for punitive damages. See Fla. R. App. P. 9.130(a)(3)(G); In re Amend. to Fla. Rule of App. Proc. 9.130, 345 So. 3d 725, 726 (Fla. 2022). The standard of review is de novo. McLane Foodservice Inc. v. Wool, 400 So. 3d 757, 760 (Fla. 3d DCA 2024). Section 768.72, Florida Statutes, gives defendants a substantive right to be free from any punitive damages claim until a trial court determines that v. Sarasota Green Grp., LLC, 363 So. 3d 1150, 1152 (Fla. 2d DCA 2023) (explaining that a qualified affidavit reflecting information and belief is insufficient to ground a claim for punitive damages and, additionally the affidavit was “fatally flawed” where the affiant “failed to disclose how he could have personal knowledge” of another’s intent); see also Estes v. Rodin, 259 So. 3d 183, 199 (Fla. 3d DCA 2018) (“Accordingly, as the verification of Appellants’ Second Amended Complaint was qualified in nature, it failed to constitute legally sufficient evidence to establish a basis for personal jurisdiction over Appellees.”); Gromann v. Avatar Prop. & Cas. Ins. Co., 345 So. 3d 298, 300 (Fla. 4th DCA 2022); Ballinger v. Bay Gulf Credit Union, 51 So. 3d 528, 529 (Fla. 2d DCA 2010).