THE BENTLEY CONDOMINIUM ASSOCIATION, INC.

v.

COLLEEN BENNETT, ETC.

Third District Court of Appeal

State of Florida

Opinion filed May 12, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-676 Lower Tribunal No. 14-31469

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The Bentley Condominium Association, Inc., et al.,

Petitioners,

vs.

Colleen Bennett, etc.,

Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, William Thomas, Judge. Boyd Richards Parker Colonnelli, and Elaine D. Walter, Yvette R. Lavelle and Craig J. Shankman, for petitioners. Mark Migdal & Hayden, and Joshua A. Migdal, Darci E. Cohen and Daniel S. Maland, for respondent. Before SCALES, MILLER and LOBREE, JJ. SCALES, J.

The Bentley Condominium Association, Jared Galbut and Keith Menin

(collectively, “Petitioners”), the defendants below, seek certiorari review of a

February 27, 2021 trial court order that granted the plaintiff below, Colleen

Bennett’s, as trustee of the Col Benn Leasing Business Trust 501,

(“Respondent”) motion to amend her complaint to add a claim for punitive

damages. We grant the petition and quash the challenged order because,

contrary to the requirements of Florida Rule of Civil Procedure 1.190(f),

Respondent filed evidence in support of her motion to amend within twenty

days of the February 26, 2021 hearing on the motion.

I. Relevant Background

Because it is important to our decision, we recount the timeline of the

parties’ relevant filings.

On January 15, 2021, Respondent filed her motion to amend the

complaint to seek punitive damages against Petitioners. While the motion to

amend contained an appendix with over four hundred pages of documents

in support of Respondent’s arguments, Respondent failed to attach a

proposed amended pleading to the motion. See Fla. R. Civ. P. 1.190(a) (“If

a party files a motion to amend a pleading, the party shall attach the

proposed amended pleading to the motion.”). On January 29, 2021,

Petitioners filed their opposition to Respondent’s motion to amend, arguing,

among other things, that the motion must be denied because of

Respondent’s non-compliance with rule 1.190(a).

In an attempt to “cure” the rule 1.190(a) problem, on February 5, 2021,

Respondent filed the proposed amended complaint in the lower court. At a

February 8, 2021 interim case management conference, the trial court, as

part of an omnibus pretrial order in the case, (i) deemed Respondent’s

motion to amend filed as of February 5, 2021 (the date Respondent filed her

proposed amended complaint), (ii) set a hearing on Respondent’s motion for

February 26, 2021, and (iii) required Petitioners to file any response to

Respondent’s motion no later than February 17, 2021.

On February 17, 2021, Petitioners filed their opposition to

Respondent’s motion to amend, again arguing, among other things, that the

motion must be denied because of Respondent’s failure to attach a copy of

the proposed amended complaint to the motion.¹

On February 24, 2021, just two days before the scheduled hearing on

Respondent’s motion to amend, Petitioners filed their “Supplemental

Response” in opposition to Respondent’s motion. That same day, February

24, 2021, Respondent filed a “Reply in Support” (“Reply”) of her motion. The

Reply contained ten pages of argument and nearly a hundred pages of

deposition transcripts and other documents, much of which had not

previously been filed with the court.

On February 26, 2021, the trial court, over Petitioners’ objections,

conducted the hearing on Respondent’s motion to amend and, the following

day, entered the challenged, unelaborated order granting Respondent’s

motion.

II. Analysis2

While Petitioners assert several arguments challenging the trial court’s

February 27, 2021 order, we address only one of Petitioners’ arguments that

we deem dispositive: whether the trial court departed from the essential

requirements of law by granting Respondent’s motion within twenty days of

Respondent filing the Reply.3

Rule 1.190(f) reads, in its entirety, as follows:

Claims for Punitive Damages. 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. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing. (Emphasis added). We read this rather unambiguous rule as requiring that

both a claimant’s motion to amend – which, by virtue of rule 1.190(a), must

requirements of section 768.72 have been followed,” including compliance with rule 1.190(f). Id. at 95-96. Because an order granting leave to amend to seek punitive damages allows for otherwise undiscoverable financial information, an erroneous grant of such a motion generally results in irreparable harm. Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071, 1076 (Fla. 3d DCA 2019). 3 Our limited standard of review prevents us from addressing the issue of whether the evidence proffered by Respondent supports a claim for punitive damages. Robins, 253 So. 3d at 96.

include the proposed amended complaint⁴ – and any evidence supporting a

punitive damage claim be filed and served no later than twenty days before

the scheduled hearing on the motion.

In this case, the trial court scheduled the hearing on Respondent’s

motion to amend for February 26, 2021 and conducted the hearing on that

day. While Respondent’s motion and Respondent’s proposed amended

complaint (properly deemed filed on February 5, 2021) were filed more than

twenty days before the hearing, Respondent’s Reply – which contained both

argument and new evidence supporting Respondent’s motion – was not

timely filed. In fact, Respondent filed her Reply just two days before the

scheduled hearing.

Rule 1.190(f) provides a clear line of demarcation: a trial court may not

conduct a hearing on a claimant’s motion for leave to file an amended

complaint seeking punitive damages within twenty days of a claimant’s filing

of evidence or proffer of evidence in support of the motion. When

Respondent filed her February 24, 2021 Reply, it was incumbent upon her

to cancel the February 26 hearing and have it rescheduled for a date at least

twenty days after the filing of her Reply.

Petition granted; February 27, 2021 order quashed.