Supreme Court of Florida
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No. SC21-129
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IN RE: AMENDMENT TO FLORIDA RULE OF APPELLATE
PROCEDURE 9.130.
January 6, 2022
CORRECTED OPINION
PER CURIAM.
This matter is before the Court for consideration of a proposed
amendment to Florida Rule of Appellate Procedure 9.130
(Proceedings to Review Nonfinal Orders and Specified Final Orders).
See Fla. R. Gen. Prac. & Jud. Admin. 2.140(f). We have
jurisdiction. 1
The Florida Bar’s Appellate Court Rules Committee
(Committee) filed a report proposing an amendment to Florida Rule
of Appellate Procedure 9.130. The Committee’s proposal follows a
referral by the Court asking the Committee to propose rule
amendments to provide for the interlocutory appeal of nonfinal
1. See art. V, § 2(a), Fla. Const.
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orders granting or denying leave to amend a complaint to assert a
claim for punitive damages.
The Committee and the Board of Governors of The Florida Bar
approved the proposed amendment. The Committee published its
proposal for comment prior to filing it with the Court and received
two comments. After the Committee filed its report, the Court
published the proposal for comment and received three comments.
After reviewing the proposal, considering the comments and
response filed, and having had the benefit of oral argument, we
adopt the proposed amendment to rule 9.130. Specifically, new
subdivision (a)(3)(G) is added to authorize appeals of nonfinal orders
that grant or deny a motion for leave to amend to assert a claim for
punitive damages.
Accordingly, Florida Rule of Appellate Procedure 9.130 is
amended as reflected in the appendix to this opinion. New
language is indicated by underscoring. The amendment shall take
effect on April 1, 2022, at 12:01 a.m.
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., dissents with an opinion.
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THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THIS AMENDMENT.
LABARGA, J., dissenting.
Today, the majority abandons our long-standing certiorari
procedure for appealing orders that grant leave to include a claim
for punitive damages in civil cases. In its place, through an
amendment to Florida Rule of Appellate Procedure 9.130, the
majority has authorized the classification of such orders as nonfinal
in nature, thereby clearing the way for immediate interlocutory
appeal.
The unfortunate consequence of this drastic change in
appellate procedure will be unnecessary and unwarranted delays in
civil actions with claims for punitive damages. Undoubtedly, once
the interlocutory vehicle of appellate review is available, it is not
unreasonable to expect that the losing party will choose to pursue
an immediate appeal of the trial court’s order in most, if not all,
cases, adding to the caseload of appellate courts. Once the trial
court’s ruling is appealed, the case will necessarily stall at the trial
level until the district court renders a ruling on whether the claim
for punitive damages was properly permitted.
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Given this additional delay, it is also not unreasonable to
anticipate that some claimants in civil cases may reluctantly forgo
meritorious claims for punitive damages in order to avoid delay in
bringing their cases to a final resolution. Of particular concern are
tort cases involving personal injury, where claims for much needed
medical and economic relief will stall until the question of punitive
damages is resolved. Access to our judicial system with claims
authorized by law should not be impeded by unnecessary delay and
resulting additional expense.
Tellingly, during oral argument on August 31, 2021, counsel
for the Appellate Court Rules Committee of The Florida Bar
(Committee) noted that in a 2018 fifty-state survey, no state had a
rule like the one adopted today by the majority. 2 Oral Argument at
4:43, https://wfsu.org/gavel2gavel/viewcase.php?eid=2761.
At the heart of the majority’s decision is a concern for the
privacy of financial discovery. Section 768.72(1), Florida Statutes
2. Recently, in In re Amendment to Florida Rule of Civil
Procedure 1.280, 324 So. 3d 459 (Fla. 2021), we noted that analysis
of other states’ practices is relevant when reviewing our own state’s
rules.
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(2019), specifically provides that “[n]o discovery of financial worth
shall proceed until after the pleading concerning punitive damages
is permitted.” Thus, once the trial court approves the addition of a
claim for punitive damages, the claimant is entitled to conduct
financial discovery to determine the financial worth of the
defendant. This process has been the subject of much discussion
throughout the years, with the right to privacy of financial
information as the major concern. However, the privacy of the
financial information disclosed during discovery can be effectively
protected by a confidentiality order entered upon the request of the
disclosing party. Thus, there is no reason to abandon the existing
fair and efficient certiorari review of these rulings.
Finally, while the majority is correct that “[t]he Committee and
the Board of Governors of The Florida Bar approved the proposed
amendment,” majority op. at 2, the Committee did so grudgingly.
Upon receipt of the Court’s referral letter, the matter was first
evaluated by the Committee’s civil practice subcommittee
(subcommittee). Although the subcommittee recommended the
amendment to rule 9.130, it acknowledged that the Committee had
previously voted to not recommend an amendment to the rule based
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on similar referrals in recent years. In this instance, however, the
subcommittee felt constrained to propose an amendment upon
concluding that the Court’s referral was a directive to do so. Report
of the Appellate Court Rules Committee, app. at G-15. During its
January 2021 meeting, the full Committee approved the
amendment, while also approving the subcommittee’s
recommendation that “it would not [have supported the
amendment] but for the mandate from the Court.” Id.
Accordingly, because there is no reason for the majority’s
drastic, unnecessary, and consequential rule change, I respectfully
dissent.
Original Proceeding – Florida Rules of Appellate Procedure
Laura A. Roe, Chair, Appellate Court Rules Committee, St.
Petersburg, Florida, Elaine D. Walter, Vice Chair, Appellate Court
Rules Committee, Miami, Florida, Honorable Stephanie Williams
Ray, Past Chair, Appellate Court Rules Committee, Tallahassee,
Florida, Joshua E. Doyle, Executive Director, and Krys Godwin,
Staff Liaison, The Florida Bar, Tallahassee, Florida,
for Petitioner
Kansas R. Gooden on behalf of the Florida Defense Lawyers
Association, Miami, Florida; Maegen Peek Luka of Newsome Melton,
Orlando, Florida, and Bryan S. Gowdy of Creed & Gowdy, P.A.,
Jacksonville, Florida; and William T. Cotterall on behalf of the
Florida Justice Association, Inc., Tallahassee, Florida,
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Responding with comments
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APPENDIX
RULE 9.130. PROCEEDINGS TO REVIEW NONFINAL ORDERS
AND SPECIFIED FINAL ORDERS
(a) Applicability.
(1) - (2) [No Change]
(3) Appeals to the district courts of appeal of nonfinal
orders are limited to those that:
(A) - (B) [No Change]
(C) determine:
(i) - (ix) [No Change]
(x) that a permanent guardianship shall be
established for a dependent child pursuant to section 39.6221,
Florida Statutes.;
(D) grant or deny the appointment of a receiver, or
terminate or refuse to terminate a receivership; or
(E) grant or deny a motion to disqualify counsel.;
(F) deny a motion that:
(i) - (ii) [No Change]
(iii) asserts entitlement to sovereign
immunity.; or
(G) grant or deny a motion for leave to amend to
assert a claim for punitive damages.
(4) - (5) [No Change]
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(b) - (i) [No Change]
Committee Notes
[No Change]
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