WEISS v. WEISS (2026)

Daughter appeals the trial court's non-final order granting the appellee mother's motion for leave to amend her counterclaim to assert punitive damages based on extortion, fraud, malicious prosecution and fabrication of evidence.¹ We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(G). We affirm.

Our review of an order granting a motion for leave to amend to assert punitive damages is “de novo.” Menada, Inc. v. Arevalo, 417 So. 3d 402, 405 (Fla. 3d DCA 2025). “Our de novo review tests the sufficiency of the proffer in the light most favorable to the moving party, without accepting conclusory legal conclusions or labels such as ‘gross misconduct’ at face value.” Id. (quoting McLane Foodservice Inc. v. Wool, 400 So. 3d 757, 761 (Fla. 3d DCA 2024)).

We find the trial court correctly performed its gatekeeping function in requiring the mother to make a reasonable showing by evidence in the record or proffer which would provide a reasonable basis for recovery of punitive damages. See § 768.72(1), Fla. Stat. (“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.”); Wolper Ross Ingham & Co. v. Liedman, 544 So. 2d 307, 308 (Fla. 3d DCA 1989) (“By its clear terms, the statute requires the respondents to make a showing by proffer or through evidence in the record that some reasonable basis exists to support recovery of punitive damages[.]”)

The proffer and record in this case contain sufficient allegations of intentional misconduct or gross negligence such that a jury might find the acts so egregious as to award punitive damages. Specifically, the mother presented personal emails from the daughter allegedly showing an intent to extort and scare her through threats to have her improperly declared incompetent to be able to control her properties and several other threats of fraud and forgery. The mother also presented corporate documents alleging her daughter maliciously falsified documents to create unfounded fraudulent ownership claims over her assets.

While this isn't the time to prove that the defendant was personally guilty of intentional misconduct or gross negligence, we find here that if the alleged conduct is proven to be true at trial, it could rise to the level of outrageous behavior of the sort warranting recovery of punitive damages. See McLane Foodservice Inc., 400 So. 3d at 760 (“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.’ ” (quoting § 768.72(2), Fla. Stat.); Menada, Inc., 417 So. 3d at 407 (Gordo, J., specially concurring) (“If the alleged conduct is proven to be true at trial, it could rise to the level of outrageous behavior of the sort warranting recovery of punitive damages.”); 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))); W.R. Grace & Co.-Conn. v. Waters, 638 So. 2d 502, 503 (Fla. 1994) (“Punitive damages are appropriate when a defendant engages in conduct which is fraudulent, malicious, deliberately violent or oppressive, or committed with such gross negligence as to indicate a wanton disregard for the rights of others.”). Accordingly, we affirm the challenged order under review.

Affirmed.

FOOTNOTES

1.   After Daughter filed her appeal, her mother's counsel filed an urgent motion to withdraw due to a conflict of interest. Counsel also sought a thirty-day extension for the mother to retain new counsel and an additional thirty days to file an answer brief. This Court granted the motion. No new counsel entered an appearance and no answer brief was filed. As a result, the mother was precluded from filing an answer brief.

GORDO, J.