DeSanto v. Grahn

Fourth DCA

DeSanto v. Grahn
4th DCA
6/14/23, Per Curiam (C.J. Klingensmith and Judges May and Ciklin)

Topics: Malpractice (Legal); Punitive Damages

Richard John DeSanto is a disbarred attorney. He was sued by former clients, and the trial court allowed those clients to add a claim for punitive damages. Section 768.72(1), Fla. Stat. and rule 1.190(f) permit punitive damages claims only where the plaintiff presents the trial court with a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of” punitive damages. The trial court allowed the claim, and DeSanto appealed. An order granting or denying a claim for punitive damages is one of the non-final orders that can be immediately appealed prior to an entry of final judgment.

The parties disagreed about the meaning of the word “proffered” in the above statutory language. DeSanto argued that a proffer has to consist of evidence, not just allegations. The former clients, however, argue that showing actual evidence is not necessary under the statute and that they can show “either evidence or anticipated evidence.”

The DCA sided with Mr. DeSanto. Caselaw states that pleadings alone cannot form an evidentiary basis for punitive damages. Whether the evidence is “in the record” or merely “proffered,” it still has to qualify as “evidence.” (NOTE: One wonders how, under this reading, any evidence proffered by a plaintiff would not then be “in the record.”). The attachment to the motion to amend the pleadings to add the claim of punitive damages was not accompanied by any record evidence, was not verified, and did not attach any affidavits. What the former clients did attach was the record of the disbarment proceedings wherein the Bar found that the attorney committed acts that might trigger a right to punitive damages, but those acts were committed against a different client, not the plaintiffs. The implication is that the attorney did these thing to the plaintiffs, too, but no evidence was submitted that substantiated that. The DCA held that without requiring actual evidence of outrageous conduct, a trial court cannot effectively act as a gatekeeper against meritless punitive damages claims. REVERSED AND REMANDED. 101608_i.pdf

Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC
PDF Version

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