Law Clerk
In Levine v. Levai, 51 Fla. L. Weekly D33a (Fla. 3d DCA Dec. 31, 2025), the Third District vacated a nonfinal order granting leave to add punitive damages because the plaintiffs did not attach the proposed amended complaint to their motion at least 20 days before the hearing, as required by Florida Rule of Civil Procedure 1.190.
Rosemary and Max Levai (the surviving wife and son of Pierre Levai) sued Paul Cowan, a lawyer, and Marcia Levine, the decedent’s longtime girlfriend, in a dispute over the decedent’s estate. The complaint alleged serious misconduct, including fraud, elder abuse, conversion, civil conspiracy, and interference with inheritance.
The Levais later sought leave to amend to assert punitive damages, but their motion did not attach a proposed amended complaint. A hearing was set for December 17, 2024. Five days before that hearing, the defendants moved to strike the motion as procedurally defective. The Levais filed the proposed amended complaint later that same day. The trial court still granted leave to add punitive damages. The defendants took an interlocutory appeal under Fla. R. App. P. 9.130(a)(3)(G).
Florida treats punitive damages as different from ordinary amendments. Section 768.72, Florida Statutes, gives defendants a substantive right to be free from punitive damages claims until the trial court determines there is a reasonable basis to assert them. That statutory right is implemented through procedural gatekeeping, requiring legally sufficient allegations and an adequate evidentiary proffer.
Two provisions of Rule 1.190 mattered here:
Rule 1.190(f): a motion to add punitive damages “shall be served on all parties at least 20 days before the hearing.”
Rule 1.190(a): if a party files a motion to amend a pleading, it must attach the proposed amended pleading to the motion.
The Third District held that a punitive-damages motion is still “a motion to amend a pleading,” so it must comply with both Rule 1.190(a) and (f).
Even though the Levais included a narrative proffer in the body of the motion, and even though the eventual amended pleading added little more than a bare punitive-damages claim, the court still enforced the rule strictly. The proposed amended complaint had to be attached and served at least 20 days before the hearing. Filing it five days before did not satisfy Rule 1.190, and the order granting leave to amend was reversible error. The court noted that § 768.72 mandates strict enforcement of these safeguards even if it “elevate[s] form over substance.” WFTV, Inc. v. Hinn, 705 So. 2d 1010, 1011 (Fla. 5th DCA 1998).
The court also noted a separate issue with the evidentiary proffer in a footnote. The panel didn’t decide whether the Levais’ proffer was substantively sufficient, but it flagged a recurring issue: a declaration verified only “to the best of my knowledge” can amount to little more than a statement of belief, rather than facts based on personal knowledge. See § 92.525(2), Fla. Stat. A proffer of evidence cannot be based on speculation when seeking punitive damages, a serious sanction.
Levine is a reminder that punitive damages are a high-stakes amendment with strict procedural prerequisites. If the proposed amended complaint is not attached and served on time, and if a proper evidentiary proffer is not made, the trial court’s order is vulnerable.
At Boatman Ricci, we help clients and co-counsel navigate Rule 1.190 and § 768.72 with an eye toward both trial-court gatekeeping and immediate appellate exposure.
Want a second set of eyes before (or after) a punitive-damages motion is set for hearing? Contact our team to tighten the procedure, sharpen the proffer, and protect the record.
* * * * * * * * * *
THIS BLOG IS INTENDED FOR GENERAL INFORMATION PURPOSES ONLY. IT DOES NOT CONSTITUTE LEGAL ADVICE. THE READER SHOULD CONSULT WITH KNOWLEDGEABLE LEGAL COUNSEL TO DETERMINE HOW APPLICABLE LAWS APPLY TO SPECIFIC FACTS AND SITUATIONS. BLOG POSTS ARE BASED ON THE MOST CURRENT INFORMATION AT THE TIME THEY ARE WRITTEN. SINCE IT IS POSSIBLE THAT THE LAWS OR OTHER CIRCUMSTANCES MAY HAVE CHANGED SINCE PUBLICATION, PLEASE CALL US TO DISCUSS ANY ACTION YOU MAY BE CONSIDERING AS A RESULT OF READING THIS BLOG.