Lauren Book V Barbara Sharief
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LAUREN BOOK,
Appellant,
v.
BARBARA SHARIEF,
Appellee.
No. 4D2024-2793
[July 23, 2025]
Nonfinal appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Shari Africk-Olefson, Judge; L.T. Case No.
CACE22-011197.
Gary S. Phillips, Joseph F. Poklemba, and Craig H. Blinderman of
Phillips Law P.A., Hollywood, and Alan J. Perlman and Jennifer J.
Vaquerano of Dickinson Wright PLLC, Fort Lauderdale, for appellant.
David P. Reiner, II of Reiner & Reiner, P.A., Miami, for appellee.
GERBER, J.
In this libel case arising from a state senate election between the
parties, the defendant appeals from the circuit court’s nonfinal order
granting the plaintiff’s motion for leave to add punitive damages claims
against the defendant. The defendant raises several grounds for reversal
of the punitive damages order, only one of which has merit. On that
ground, the defendant argues the circuit court failed to make an
affirmative finding indicating whether and how the plaintiff had made a
reasonable evidentiary showing that the defendant had committed either
“intentional misconduct” or “gross negligence,” as those terms are defined
in section 768.72(2), Florida Statutes (2024), and as required for a jury to
award punitive damages under section 768.72(2), thus making the circuit
court’s order legally deficient.
We agree with this argument. We reverse the punitive damages order,
and remand for the circuit court to make an affirmative finding indicating
whether and, if so, how the plaintiff has made a reasonable evidentiary
showing that the defendant had committed either “intentional
misconduct” or “gross negligence” as required for a jury to award punitive
damages under section 768.72(2).
Relevant Procedural History
The plaintiff’s motion to add punitive damages claims against the
defendant included a section entitled “Evidence Proffered or Contained in
the Record.” In that section, the plaintiff quoted paragraphs 37 to 58 from
her operative second amended complaint, including nine allegedly libelous
statements attributed to the defendant. The plaintiff incorporated by
reference two composite exhibits—in both transcript and video forms—
documenting those allegedly libelous statements.
The plaintiff’s motion next referenced the deposition testimony of the
defendant and the defendant’s campaign manager. The plaintiff’s motion
summarily characterized the defendant’s deposition testimony as having
“admitted that [the defendant] has continued to make these false
accusations [against the plaintiff] even after being made fully aware of their
falsity.” The plaintiff’s motion summarily characterized the defendant’s
campaign manager’s deposition testimony as having admitted he had
“doctored a news article headline about campaign violations … to falsely
make it look like [the plaintiff had] admitted to Medicaid fraud when he
and [the defendant] both knew that this [accusation] was a lie.”
The plaintiff’s motion concluded by arguing: “Considering the record
evidence and proffered evidence in the light most favorable to the Plaintiff,
there is a more-than-reasonable basis for it to ultimately be found that
Defendant engaged in ‘intentional conduct’ or ‘gross negligence’ with
respect to her defamatory statements. Fla. Stat. §768.72(2) (defining
‘intentional conduct’ and ‘gross negligence’).”
The circuit court held a hearing on the plaintiff’s motion during the
court’s five-minute motion calendar, but did not issue an oral ruling. Two
weeks later, the circuit court entered a written order granting the plaintiff’s
motion. The order first recognized the applicable standard of review from
section 768.72(1) that “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.” § 768.72(1), Fla. Stat. (2024). The order then recognized
that “[b]are allegations are insufficient to support a punitive damages
claim,” Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071, 1075 (Fla. 3d
DCA 2019) (citation omitted). The order next recognized that “the
evidentiary showing required by section 768.72 does not contemplate the
trial court simply accepting the allegations in a complaint or a motion to
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amend as true.” Fla. Hosp. Med. Servs., LLC v. Newsholme, 255 So. 3d
348, 351 (Fla. 4th DCA 2018) (citation omitted). The order then concluded:
Here, [Defendant] argues that Plaintiff failed to sufficiently
establish such an evidentiary basis. The Court does not
concur; the Court finds that [Plaintiff’s] Second Amended
Complaint, including but not limited to paragraphs 37 to 58,
and evidence proffered, in the aggregate, met the required
legal threshold to plead the claim for ultimate determination
by a jury.
However, the circuit court’s order did not specifically determine
whether and how the plaintiff’s proffered evidence had made a reasonable
showing that the defendant had committed either “intentional
misconduct” or “gross negligence,” as those terms are defined in section
768.72(2), and as required for a jury to award punitive damages under
section 768.72(2).
This Appeal
This appeal followed. See Fla. R. App. P. 9.130(a)(3)(G) (“Appeals to the
district courts of appeal of nonfinal orders [include] those that … grant or
deny a motion for leave to amend to assert a claim for punitive
damages[.]”).
The defendant argues the circuit court failed to make an affirmative
finding indicating whether and how the plaintiff had made a reasonable
evidentiary showing that the defendant had committed either “intentional
misconduct” or “gross negligence,” as those terms are defined in section
768.72(2), and as required for a jury to award punitive damages under
section 768.72(2), thus making the circuit court’s order legally deficient.
The plaintiff responds the order reflects that the circuit court applied
the correct standard of review, and made an affirmative finding that a
rational trier of fact could find punitive damages at trial. The plaintiff
argues the circuit court was not required to make any more specific
findings.
We agree with the defendant’s argument. Section 768.72 pertinently
provides:
(1) In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence in
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the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages. …
(2) A defendant may be held liable for punitive damages only
if the trier of fact, based on clear and convincing evidence,
finds that the defendant was personally guilty of intentional
misconduct or gross negligence. As used in this section, the
term:
(a) “Intentional misconduct” means that the defendant had
actual knowledge of the wrongfulness of the conduct and the
high probability that injury or damage to the claimant would
result and, despite that knowledge, intentionally pursued that
course of conduct, resulting in injury or damage.
(b) “Gross negligence” means that the defendant’s conduct
was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights
of persons exposed to such conduct.
§ 768.72(1)-(2), Fla. Stat. (2024) (emphases added).
Here, at no point during the five-minute motion calendar hearing on
the plaintiff’s motion to add punitive damages claims, or in the circuit
court’s written order granting that motion, did the circuit court make an
affirmative finding indicating whether and how the plaintiff had made a
reasonable evidentiary showing that the defendant had committed either
“intentional misconduct” or “gross negligence,” as those terms are defined
in section 768.72(2), and as required for a jury to award punitive damages
under section 768.72(2).
Without any such affirmative finding, we cannot determine whether the
circuit court performed its gatekeeper function of determining that the
plaintiff had provided “a reasonable basis for recovery of such damages,”
with that basis being the defendant having committed either “intentional
misconduct” or “gross negligence.” § 768.72(1)-(2), Fla. Stat. (2024). See
Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 30 n.3 (Fla. 4th DCA 2023)
(“[T]he trial court, serving as a gatekeeper, is required to make an
affirmative finding that movant has made a reasonable showing by
evidence, which would provide a reasonable evidentiary basis for
recovering such damages if the motion to amend is granted.”) (emphases
added; internal brackets, quotation marks, and citation omitted); McLane
Foodservice Inc. v. Wool, 400 So. 3d 757, 760-61 (Fla. 3d DCA 2024) (“[T]he
gatekeeping function of the trial court in assessing a motion to amend to
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add a claim for punitive damages requires a determination of whether the
proffer, if proven, provides competent, substantial evidence at trial upon
which a rational trier of fact could find that the defendant specifically
intended to engage in intentional or grossly negligent misconduct that was
outrageous and reprehensible enough to merit punishment.”) (emphases
added; internal quotation marks and citation omitted). Put another way,
without any such affirmative finding, the circuit court’s order is incapable
of adequate appellate review. See Perlmutter, 376 So. 3d at 30 n.3
(“Without an affirmative finding and identification of evidence supporting
the ruling, appellate courts will be significantly hampered in their review
of whether the trial court properly performed its gatekeeping function.”).
Although we have de novo review of orders granting or denying motions to
add punitive damages claims, id. at 34, de novo review is not a proper
substitute for the lack of an affirmative finding in the first instance.
Conclusion
Based on the foregoing, we reverse the circuit court’s order, and remand
for the circuit court to make an affirmative finding indicating whether and,
if so, how the plaintiff has made a reasonable evidentiary showing that the
defendant had committed either “intentional misconduct” or “gross
negligence,” as those terms are defined in section 768.72(2), and as
required for a jury to award punitive damages under section 768.72(2).
Nothing in this opinion should be interpreted as suggesting whether the
plaintiff has or has not made such a showing. Further, the circuit court
is not required to hold another hearing before issuing an amended order
on the plaintiff’s motion.
Reversed and remanded as directed.
KUNTZ, C.J., and MAY, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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