CARPENTER'S HOME ESTATES, INC. AND HMS OF LAKELAND, INC. v. SANDRA K. SANDERS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MARY HURST CURRY

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

October 16, 2019

CARPENTERS HOME ESTATES, ) INC., and HMS OF LAKELAND, ) INC., ) ) Petitioners, ) ) v. ) Case No. 2D18-2608 ) SANDRA K. SANDERS, as personal ) representative of the Estate of Mary ) Hurst Curry, deceased, ) ) Respondent. ) )

BY ORDER OF THE COURT:

Upon consideration of respondent's motion for rehearing, certification, and/or rehearing en banc filed on June 27, 2019,

IT IS ORDERED that the motion for rehearing is granted to the extent that the opinion dated June 12, 2019, is withdrawn and the attached opinion is substituted therefor. Respondent's motion for certification and rehearing en banc is denied.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERK

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

CARPENTERS HOME ESTATES, ) INC., and HMS OF LAKELAND, ) INC., ) ) Petitioners, ) ) v. ) Case No. 2D18-2608 ) SANDRA K. SANDERS, as personal ) representative of the Estate of Mary ) Hurst Curry, deceased, ) ) Respondent. ) )

Opinion filed October 16, 2019.

Petition for Writ of Certiorari to the Circuit Court for Polk County; Michael E. Raiden, Judge.

Thomas A. Valdez of Quintairos, Prieto Wood & Boyer, P.A., Tampa, for Petitioners.

Megan L. Gisclar, Joanna Greber Dettloff, Jason R. Delgado, and James L. Wilkes, II, of Wilkes & McHugh, P.A., Tampa; and Robert E. Salyer of Wilkes & McHugh, P.A., Lexington, Kentucky, for Respondent.

ROTHSTEIN-YOUAKIM, Judge.

In this proceeding on a petition for a writ of certiorari, Carpenters Home Estates, Inc., and HMS of Lakeland, Inc. (collectively, "the nursing home defendants"), challenge the trial court's order granting Sandra K. Sanders, as personal representative of the Estate of Mary Hurst Curry, leave to amend her negligence and wrongful-death action against them under chapter 400, Florida Statutes (2016), to include a claim for punitive damages. Because we agree that the court failed to comply with the procedural requirements of section 400.0237, we grant the petition and quash the order.

Pursuant to section 400.0237(1), "[a] claim for punitive damages may not be brought under this part unless there is a showing by admissible evidence that has been submitted by the parties that provides a reasonable basis for recovery of such damages when the criteria in this section are applied." Section 400.0237 creates "a substantive legal right" in chapter 400 proceedings "not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Cf. Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995) (holding that in the context of section 768.72, Florida Statutes (1993), the punitive-damages statute is generally applicable to civil actions). Because a plenary appeal cannot restore a defendant's statutory right under section 400.0237, we have certiorari jurisdiction to determine whether the trial court complied with the procedural requirements of section 400.0237 in granting Sanders' motion for leave to amend. See Globe Newspaper Co., 658 So. 2d at 519-20 (holding that appellate courts have certiorari jurisdiction to review whether a trial court "has conformed with the procedural

-2-requirements of section 768.72" and "should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section 768.72 have not been followed").

We conclude that it did not. When a plaintiff moves to amend a complaint under chapter 400 to assert a claim for punitive damages, the trial court must

conduct a hearing to determine whether there is sufficient admissible evidence submitted by the parties to ensure that there is a reasonable basis to believe that the claimant, at trial, will be able to demonstrate by clear and convincing evidence that the recovery of such damages is warranted under a claim for direct liability . . . or under a claim for vicarious liability.

§ 400.0237(1)(b). To establish direct liability, the evidence would have to show that the nursing home defendants "actively and knowingly participated in intentional misconduct or engaged in conduct that constitutes gross negligence and contributed to the loss, damages, or injury suffered by the claimant." See § 400.0237(2). To establish vicarious liability, the evidence would have to show that an employee or agent of the nursing home defendants had engaged in the above conduct and that "an officer, director, or manager of [the nursing home defendants] condoned, ratified, or consented to the specific conduct." See § 400.0237(3).

The trial court's order gave multiple appalling examples of staff dropping the ball when it came to Ms. Curry's care. But as commonsensical as it may seem that such incidents could only result from an institutional breakdown, the order identified no admissible evidence that supported the court's attribution of the staff's conduct to the nursing home defendants under a theory of either direct or vicarious liability. It identified no admissible evidence implicating the nursing home defendants even in ordinary

-3-negligence—by, say, a failure to adequately staff or a failure to adequately train—let alone in either intentional misconduct or gross negligence. And it identified no admissible evidence indicating that any officer, director, or manager of the nursing home defendants had "condoned, ratified, or consented to" any of the staff's actions or incidents of inaction. See id.

The trial court, therefore, failed to ensure, based on sufficient admissible evidence, that there is a reasonable basis to believe that Sanders, at trial, will be able to demonstrate by clear and convincing evidence that the recovery of punitive damages is warranted against either or both of the nursing home defendants under a claim for either direct or vicarious liability. Because the court did not follow the procedural requirements of section 400.0237, we grant the nursing home defendants' petition and quash the order granting leave to amend.

Petition granted; order quashed. KELLY and BLACK, JJ., Concur.

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