Opinion
2D22-3464
08-18-2023
STEPHANIE WIENDL, Appellant, v. JOSEPH A. WIENDL, Appellee.
Robert M. Brush of Brush & Coyle, P.A., Lakeland, for Appellant. David A. Townsend of Townsend &Brannon, P.L., Tampa, for Appellee.
Appeal from the County Court for Hillsborough County; Michael C. Bagge-Hernandez, Judge.
Robert M. Brush of Brush & Coyle, P.A., Lakeland, for Appellant.
David A. Townsend of Townsend &Brannon, P.L., Tampa, for Appellee.
LABRIT, JUDGE
In this malicious prosecution action, Stephanie Wiendl (Former Wife) appeals an order granting Joseph Wiendl (Former Husband) leave to assert a claim for punitive damages against her. She contends that the evidence he presented below is legally insufficient to support a claim for punitive damages. We agree and reverse.
I.
The parties were married for almost twenty years. They separated in July 2014, and Former Wife filed a petition to dissolve the marriage that month. The following month, on August 29, 2014, Former Wife separately filed a petition for injunction against domestic violence (DVI petition) alleging that an incident involving Former Husband occurred at the marital home on August 28, 2014, that caused Former Wife to fear for her safety. The DVI petition also identified other alleged domestic incidents that occurred prior to the August 28 incident. The circuit court consolidated the DVI proceeding with the parties' pending dissolution proceeding. And in December 2015, the circuit court entered a stipulated order dismissing the DVI petition. The order stated that "[t]he parties entered into a stipulated agreement which included voluntary dismissal of the [DVI petition] and the entry of an Order Prohibiting Contact Between the Parties." Per the parties' agreement, the circuit court ordered Former Husband to have no contact with and stay three hundred feet from Former Wife.
Approximately two years later, in September 2017, Former Husband filed a complaint for malicious prosecution against Former Wife in county court. Former Husband alleged that there was a "complete and utter lack of probable cause" for the DVI petition. He likewise alleged that Former Wife acted with malice and that she filed the DVI petition to harm him and to gain an upper hand in their divorce. Former Husband then moved for leave to assert a claim for punitive damages against Former Wife pursuant to section 768.72, Florida Statutes (2022). He filed evidence in support, including the DVI petition along with deposition and affidavit testimony from a family friend who recalled Former Wife gloating about filing it. Former Husband also filed recorded testimony that Former Wife gave in the DVI and dissolution proceedings, which contained certain inconsistencies as to the date she moved out of the marital home, and established that Former Wife had a paramour before moving out. Former Husband further presented certain admissions from Former Wife related to the pre-August 28 incidents identified in the DVI petition, and testimony from two officers who responded to the marital home after one of those incidents and who did not observe any physical injuries to Former Wife.
The county court granted Former Husband's motion based on this evidence. It found that Former Husband made a reasonable showing by evidence in the record that Former Wife acted with legal malice and with wanton disregard for Former Husband's rights. Former Wife timely appealed the order under Florida Rule of Appellate Procedure 9.130(a)(3)(G), which now permits interlocutory review of an order granting leave to amend to assert a claim for punitive damages. The parties agree that our standard of review is de novo. See Cleveland Clinic Fla. Health Sys. Nonprofit Corp. v. Oriolo, 357 So.3d 703, 705 (Fla. 4th DCA 2023).
Pursuant to this court's decision in Omega Title Naples, LLC v. Butschky, 327 So.3d 424, 426 (Fla. 2d DCA 2021), the county court made express oral findings at the hearing and identified the evidence discussed above as the basis for granting Former Husband's motion.
Our supreme court added subdivision (a)(3)(G) to rule 9.130 in 2022 "to authorize appeals of nonfinal orders that grant or deny a motion for leave to amend to assert a claim for punitive damages." In re Amend. to Fla. R. App. P. 9.130 , 345 So.3d 725, 726 (Fla. 2022). Prior to this amendment, our jurisdiction was limited to certiorari review of whether the procedural requirements of section 768.72 were met, and we lacked jurisdiction to review "the sufficiency of or 'substantive merits' of the evidence" supporting a claim for punitive damages. See Life Care Ctrs. of Am., Inc. v. Croft, 299 So.3d 588, 590-91 (Fla. 2d DCA 2020).
II.
Section 768.72(1) provides 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." This statute "does not mandate that a trial court require a claimant to prove the entitlement to punitive damages by clear and convincing evidence at the pleading stage." Deaterly v. Jacobson, 313 So.3d 798, 801 (Fla. 2d DCA 2021). But a claimant still must make "a reasonable showing" that there is "a reasonable basis for recovery" of punitive damages. § 768.72(1).
Under section 768.72(2), a "'reasonable basis for recovery' is a showing that the defendant 'was personally guilty of intentional misconduct or gross negligence.' "White v. Boire, 320 So.3d 814, 816 (Fla. 2d DCA 2021) (quoting § 768.72(2)). The statute defines "intentional misconduct" and "gross negligence" as follows:
(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(2)(a)-(b). Thus, a party seeking to plead a claim for punitive damages must make a "reasonable showing" that the defendant "was personally guilty of intentional misconduct or gross negligence" as defined in the statute. § 768.72(1), (2).
Former Husband did not make such a showing here. For starters, the evidence Former Husband presented did not reasonably show that Former Wife was guilty of intentional misconduct. By its plain language, section 768.72(2)(a) limits intentional misconduct to situations where "the defendant had actual knowledge of the wrongfulness of the conduct." This means Former Husband had to show that Former Wife's conduct was wrongful and she knew it to be so. But the evidence did not show that the conduct on which Former Husband based his motion- Former Wife's filing of the DVI petition-was wrongful in the first place.
Critically, there was no showing that the August 28 incident that precipitated the DVI petition did not occur. And Former Husband did not dispute that a physical touching occurred that day. While there was evidence that Former Wife later gloated about filing the DVI petition, any ill will or malice she harbored toward Former Husband does not prove that she lacked probable cause to file the petition. See Duval Jewelry Co. v. Smith, 136 So. 878, 880 (Fla. 1931) ("Malice may be implied or inferred from want of probable cause, but want of probable cause cannot be inferred from malice."); Cent. Fla. Mach. Co. v. Williams, 424 So.2d 201, 203 (Fla. 2d DCA 1983) ("[A] bare showing of malice will not . . . permit an inference of lack of probable cause."). Moreover, the DVI proceedings concluded with the parties stipulating to a no contact order rather than pursuing a judicial resolution of the DVI petition. Nothing in this record suggests that Former Wife wrongfully filed the DVI petition or that its dismissal was on the merits. Thus, on this record, Former Husband did not make a reasonable showing that there was a reasonable basis to recover punitive damages based on intentional misconduct.
We also note that "a plaintiff in a malicious prosecution case must, as an essential element of that cause of action, establish that the prior litigation giving rise to the malicious prosecution suit ended with a 'bona fide termination' in that party's favor." Verdon v. Song, 251 So.3d 256, 259 (Fla. 5th DCA 2018). "This means that the prior proceeding must end in a manner that indicates the plaintiff's innocence of the charges or allegations," id., and "does not encompass a termination resulting from negotiation, settlement, or consent," Rowen v. Holiday Pines Prop. Owners' Ass'n, 759 So.2d 13, 16 (Fla. 4th DCA 2000).
We reach the same conclusion as to gross negligence under section 768.72(2)(b). To demonstrate gross negligence, Former Husband had to make a reasonable showing that Former Wife's conduct "was so reckless or wanting in care that it constituted a conscious disregard or indifference to [his] life, safety, or rights." § 768.72(2)(b). Our supreme court explained the heightened level of negligent conduct needed to satisfy this definition as follows:
The character of negligence necessary to sustain an award of punitive damages must be of a "gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them."Valladares v. Bank of Am. Corp., 197 So.3d 1, 11 (Fla. 2016) (quoting Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486 (Fla. 1999)). This court has similarly explained that "punitive damages are only warranted if there is evidence of negligence on [the defendant's] part 'equivalent to the conduct involved in criminal manslaughter.' "Fla. Power & Light Co. v. Dominguez, 295 So.3d 1202, 1206 (Fla. 2d DCA 2019) (quoting Valladares, 197 So.3d at 11). For the reasons explained above, Former Husband's evidence did not establish a reasonable basis to recover punitive damages based on gross negligence.
"As the Florida Supreme Court recognizes, punitive damages are reserved for truly 'culpable conduct' ...." Cleveland Clinic Fla. Health Sys. Nonprofit Corp., 357 So.3d at 706 (quoting Valladares, 197 So.3d at 11). "Such conduct must be 'so outrageous in character, and so extreme in degree . . . [that] the facts [of the case] to an average member of the community would arouse his [or her] resentment against the actor, and lead him [or her] to exclaim, "Outrageous!"' "Id. (first and second alteration in original) (quoting Payton Health Care Facilities, Inc. v. Campbell ex rel. Est. of Campbell, 497 So.2d 1233, 1240 (Fla. 2d DCA 1986)). The evidence presented below does not rise to this level.
We also cannot overlook the purpose of punitive damages, which "is not to further compensate the plaintiff, but to punish the defendant for [his or her] wrongful conduct and to deter similar misconduct by [him or her] and other actors in the future." Owens-Corning Fiberglas Corp., 749 So.2d at 486. Permitting Former Husband's claim for punitive damages under these facts-where there was no evidence that the precipitating event for the DVI petition did not occur and the parties resolved the DVI petition by agreement-would not deter misconduct. And it potentially could deter meritorious DVI petitions and their amicable resolution.
In sum, Former Husband did not make a reasonable showing by evidence in this record that there was a reasonable basis to recover punitive damages against Former Wife. We therefore reverse the order granting Former Husband's motion and remand for further proceedings.
Reversed and remanded.
SLEET, C.J., and SMITH, J., Concur.
Opinion subject to revision prior to official publication.