DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARK H. LEINBERGER and KYLE FOREMAN,

Petitioners,

v.

JOEL MAGEE,

Respondent.

No. 4D17-1400

[August 23, 2017]

Petition for Writ of Certiorari to the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Richard L. Oftedal, Judge; L.T. 

Case No. 2016CA008470XXXXMB.

Roger Levine and Amy D. Shield of Shield & Levine, P.A., Boca Raton, 

and Bennett S. Cohn of Law Offices of Bennett S. Cohn, West Palm 

Beach, for petitioners.

Scott D. McKay of McKay Law Firm, P.A., Bradenton, for respondent.

PER CURIAM.

Petitioners Mark Leinberger and Kyle Forman seek certiorari review of 

a trial court order that granted respondent Joel Magee’s motion for leave 

to claim punitive damages. Certiorari lies to review this order because 

the trial court failed to follow the procedures required for such pleadings. 

See Tilton v. Wrobel, 198 So. 3d 909 (Fla. 4th DCA 2016).

The complaint alleged tortious interference with a business 

relationship and defamation. An email attached to the complaint was 

sent to a hotel representative at a site where respondent had 

contractually agreed to conduct a toy buying event. The email contained 

a claim that respondent was acting beyond his contractually limited 

territory in conducting the event there, had a poor reputation in the 

collectible toy community and had “run afoul of the Better Business 

Bureau.”
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The trial court conducted a hearing on respondent’s motion for leave 

to amend, but there was no court reporter present and thus no 

transcript can be provided. The court granted the motion in an order 

that did not explain its rationale and did not indicate for which counts it 

intended to allow a punitive damages claim.

Section 768.72(1), Florida Statutes (2016), provides that a punitive 

damages claim is permitted only on a “reasonable showing by evidence in 

the record or proffered by the claimant which would provide a reasonable 

basis for recovery of such damages.” In Varnedore v. Copeland, 210 So. 

3d 741 (Fla. 5th DCA 2017), the Fifth District recently granted a petition 

while framing the procedural requirements for a motion for leave to 

amend to seek punitive damages. 

First, the movant must attach the proposed amended pleading to the 

motion seeking leave to amend, in compliance with Florida Rule of Civil 

Procedure 1.190(a). Id. at 744-47. The record in this case reveals no 

proposed amended pleading was attached to respondent’s motion for 

leave to amend. Petitioner correctly argues that this failure warrants 

certiorari relief. “Moving to amend without attaching a copy of the 

proposed amended pleading is insufficient.” Id. at 745. 

Second, Varnedore held that pursuant to rule 1.190(f), the “proffer” or 

other evidence of record to support the punitive damages claim must be 

served prior to the hearing on the motion for leave to amend. Id. at 747. 

The rule requires that it be served at least twenty days before the 

hearing. Our record does not demonstrate compliance with this 

requirement either. 

Third, the trial court must make an affirmative finding that the 

plaintiff made a “‘reasonable showing by evidence,’ which would provide 

a ‘reasonable evidentiary basis for recovering such damages’ if the 

motion to amend is granted.” Id. at 747-48 (quoting SAP Am. Inc. v. 

Royal Flowers, Inc., 187 So. 3d 946, 947 (Fla. 3d DCA 2016)). The trial 

court’s order under review contained no such finding and did not 

reference such an affirmative finding made at the hearing either. 

In granting the petition, this court is not reweighing or considering 

the sufficiency of the evidence presented. That is not permitted under 

the case law. Globe Newspaper Co. v. King, 658 So. 2d 518, 520 (Fla. 

1995). Rather, we conclude that the trial court failed to comport with the 

procedural requirements for entertaining and ruling on a motion to 
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amend under section 768.72(1), Florida Statutes (2016), Florida Rule of 

Civil Procedure 1.190(a) and the case law. 

Petition granted. Order quashed. 

GROSS, LEVINE and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.