MEDFAST URGENT CARE CENTERS, LLC

v.

LOGAN B. ARBOGAST, JUSTIN A. TORPY, AND SPACE COAST URGENT CARE, LLC

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2024-2576 LT Case No. 2022-CA-043468 _____________________________

MEDFAST URGENT CARE

CENTERS, LLC,

Appellant,

v.

LOGAN B. ARBOGAST, JUSTIN A.

TORPY, and SPACE COAST URGENT CARE, LLC,

Appellees. _____________________________

Nonfinal appeal from the Circuit Court for Brevard County. Scott Blaue, Judge.

David J. Volk, of Volk Law Offices, P.A., Melbourne, for Appellant.

Douglas D. Marks, of Douglas D. Marks, P.A., Indialantic, for Appellees.

September 26, 2025

PER CURIAM.

Medfast Urgent Care Centers, LLC, appeals the trial court’s denial of its motion to amend complaint seeking leave to add a

AFFIRMED.

JAY, C.J., and WALLIS, J., concur. SOUD, J., concurs specially, with opinion.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

3

Case No. 5D2024-2576 LT Case No. 2022-CA-043468

SOUD, J., concurring specially. I concur in affirming the trial court’s denial of Medfast Urgent Care Centers, LLC’s motion to amend its complaint seeking leave to add a claim for punitive damages and write separately to clarify my view of a plaintiff’s required showing under section 768.72, Florida Statutes (2024), and to underscore the trial court’s critical role as “gatekeeper” in considering that showing.

I.

Unlike compensatory damages that are designed to make a plaintiff whole (to the extent possible) for harm caused by the tortious conduct of a defendant, see MCI Worldcom Network Servs., Inc. v. Mastec, Inc., 995 So. 2d 221, 223 (Fla. 2008), punitive damages operate as the name suggests—to punish intentional or grossly negligent misconduct that injures another, see Hosp. Specialists, P.A. v. Deen, 373 So. 3d 1283, 1288 (Fla. 5th DCA 2023); see also Fed. Ins. v. Perlmutter, 376 So. 3d 24, 32 n.4 (Fla. 4th DCA 2023), review granted, No. SC2024–0058, 2024 WL 4948685 (Fla. Dec. 3, 2024). These damages are directed toward defendants who have acted so reprehensibly that such conduct jeopardizes not only the plaintiff in a given lawsuit but the public as a whole. See Monsanto Co. v. Behar, 50 Fla. L. Weekly D1290a (Fla. 3d DCA June¹¹, 2025). The United States Supreme Court has gone so far as to describe punitive damages as “quasi-criminal” in nature and designed to “operate as ‘private fines’ intended to [both] punish the defendant and to deter future wrongdoing” by the defendant and other so-inclined actors. See Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432 (2001); see also Crump v. Am. Multi-Cinema, Inc., 383 So. 3d 880, 885 n.6 (Fla. 5th DCA 2024); Mercer v. Saddle Creek Transp., Inc., 389 So. 3d 774, 776–77 (Fla. 6th DCA 2024). While a jury’s award of compensatory damages in essence is a factual determination, “its

II.

In Florida, a plaintiff’s ability to seek punitive damages is substantively governed by section 768.72, Florida Statutes (2024). And as we have previously noted, the burden imposed upon one pursuing punitive damages “is—substantively speaking—not a modest one.” See Crump, 383 So. 3d at 886. Section 768.72 prohibits a plaintiff from asserting a claim for punitive damages until he makes “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. (emphasis added). As a result, a plaintiff generally may not plead a claim for punitive damages in an initial complaint. See Hosp. Specialists, P.A., 373 So. 3d at 1287. Instead, Florida law requires a plaintiff to seek leave to amend his complaint before a claim for punitive damages may be pursued. See § 768.72(1), Fla. Stat.; see also Fla. R. Civ. P. 1.190(a), (f). If the trial court permits the claim, section 768.72(2) allows a plaintiff to ultimately recover such damages from a defendant “only if” a finder of fact concludes that clear and convincing evidence demonstrates the defendant was personally1 guilty of

1 Section 768.72(3) sets forth what is required for an “employer, principal, corporation, or other legal entity” to be held liable for punitive damages for the conduct of an employee or agent.

A.

The granting of leave to seek punitive damages is a watershed moment in any civil action because it exposes a defendant to financial-worth discovery and possible liability for uninsured losses resulting from an adverse judgment. See Manheimer v. Fla. Power & Light Co., 403 So. 3d 257, 260 (Fla. 3d DCA 2023) (calling this decision a “game changer”). As a result, based on the plain language of section 768.72, and longstanding precedent from the Florida Supreme Court, we have held that the “statute creates for a defendant ‘a substantive legal right not to be subject to a punitive damages claim . . . until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.’” See Crump, 383 So. 3d at 885 (quoting Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995)). The requirement that a plaintiff be granted leave to plead a claim for punitive damages is a meaningful impediment designed to protect a defendant’s right not to be subject to financial discovery absent sufficient basis. See id. (citing Werner Enters., Inc. v. Mendez, 362 So. 3d 278, 281 (Fla. 5th DCA 2023)); see also Est. of Despain v. Avante Grp., Inc., 900 So. 2d 637, 641 (Fla. 5th DCA 2005). However, the statute also makes clear this protection for a defendant does not place a plaintiff in a procedural straitjacket. Rather, the statute affords to a plaintiff the full palette of discovery to learn of any non-privileged matter that is

2 Both “intentional misconduct” and “gross negligence” are defined by the statute. See § 768.72(2)(a)–(b), Fla. Stat.

B.

In implementing the requirements of section 768.72, Florida Rule of Civil Procedure 1.190 requires a plaintiff seeking authorization to claim punitive damages to file a motion for leave to amend the complaint and attach the proposed amended complaint to the motion. See Fla. R. Civ. P. 1.190(a), (f); see also Crump, 383 So. 3d at 885 (citing Varnedore v. Copeland, 210 So. 3d 741, 745 (Fla. 5th DCA 2017)). “The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.” Fla. R. Civ. P. 1.190(f). In light of the requirements of both section 768.72 and rule 1.190, a plaintiff seeking leave to claim punitive damages must satisfy two separate and distinct components before a claim for punitive damages may be permitted by the trial court: “the pleading component and the evidentiary component.” Varnedore, 210 So. 3d at 744; see also Crump, 383 So. 3d at 885.

1.

We noted in Varnedore the foundational principle that parties to a civil action must state their respective legal positions in a document—a pleading—so that all parties and the trial court are clear on the issues requiring adjudication. See Varnedore, 210 So. 3d at 745 (quoting Bank of Am. Nat’l Ass’n v. Asbury, 165 So. 3d 808, 809 (Fla 2d DCA 2015)). As a result, to satisfy the pleading component, a plaintiff must plead in sufficient detail the specific factual basis underlying its intended claim for punitive damages. See id. In doing so, a plaintiff must allege facts that—taken as true only for purposes of the pleading component—would constitute intentional or grossly negligent misconduct, as required and defined by section 768.72(2)(a)–(b). If the amended complaint fails to clear this pleading hurdle, the motion seeking

2.

If a plaintiff’s proposed amended complaint satisfies this pleading component by pleading allegations of a defendant’s intentional conduct or gross negligence, a plaintiff seeking to claim punitive damages must still overcome the evidentiary component required by the statute. Section 768.72 charges a plaintiff to make “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of [punitive] damages.” § 768.72(1), Fla. Stat. (emphasis added). While this statute does not require a plaintiff “to prove the case” or present an evidentiary showing that “itself constitutes ‘clear and convincing evidence . . . that the defendant was personally guilty of intentional misconduct or gross negligence[,]’” McLane, 400 So. 3d at 760 (quoting § 768.72(2), Fla. Stat.), it does place a meaningful burden upon the plaintiff. Initially, a plaintiff’s showing supporting a request to seek punitive damages must “match” the factual allegations in the proposed amended complaint. See Perlmutter, 376 So. 3d at 32. That is to say, the showing must demonstrate a reasonable evidentiary basis by which a jury could conclude that the factual allegations in the proposed amended complaint have been proven by clear and convincing evidence sufficient to warrant the imposition of punitive damages. Further, in making this required “reasonable showing” of a “reasonable basis” for the imposition of punitive damages, there is but one foundation laid by the statute upon which plaintiff’s showing may be built—evidence. See § 768.72(1), Fla. Stat.; see also Fla. R. Civ. P. 1.190(f) (“A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages.” (emphasis added)). Evidence is “[a]ny

3 Statements by witnesses that are mere speculation, suspicion, or conjecture do not constitute evidence and are insufficient to carry a plaintiff’s burden. See generally Broward Exec. Builders, Inc. v. Zota, 192 So. 3d 534, 539 (Fla. 4th DCA 2016).

4 In the context of hearing a motion to add a claim for punitive damages under section 768.72 and rule 1.190(f), “proffer” is a term that “refers only to timely filed documents and excludes oral representations of additional evidence made during the hearing.” Varnedore, 210 So. 3d at 747; see also Perlmutter, 376 So. 3d at 34 n.6 (citing Varnedore). Thus, the trial court cannot properly consider plaintiff’s counsel’s oral or other proffers of evidence which are first presented during the hearing. Varnedore, 210 So. 3d at 747; see also Perlmutter, 376 So. 3d at 34 n.6 (citing Varnedore).

C.

Once a plaintiff has presented his showing, “the trial court acts as a ‘gatekeeper’ to assess whether the claimant has shown a reasonable evidentiary basis for the recovery of punitive damages.” See Crump, 383 So. 3d at 885 (quoting Hosp. Specialists, 373 So. 3d at 1287). In so doing, the trial court views the evidence in a light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable inferences. See Varnadore, 210 So. 3d at 747; see also Mercer, 389 So. 3d at 777. But how precisely is the trial court to go about the important work of determining both the reasonableness of the plaintiff’s showing and the reasonableness of any evidentiary basis for the award of punitive damages? See § 768.72(1), Fla. Stat. Here, too, the answer seems plain from the language of the statute itself. Importantly, the trial court’s work is guided by two opposing guardrails. On the one side, the law requires that the trial court does not simply accept the allegations of misconduct in the complaint or motion as true. See Manheimer, 403 So. 3d at 261 (quoting Napleton’s N. Palm Auto Park, Inc. v. Agosto, 364 So. 3d 1103, 1105 (Fla. 4th DCA 2023)); see also Mercer, 389 So. 3d at 777; McLane, 400 So. 3d at 761. Conversely, on the other side, the trial court is neither called upon nor permitted to weigh conflicting evidence or determine witness credibility in an effort to decide (as if a juror) the ultimate question of whether the plaintiff has proven the punitive damages claim by clear and convincing evidence. See Mercer, 389 So. 3d at 777. Rather, the trial court must travel down the center of its lane and decide whether a plaintiff has reasonably presented sufficient evidence that, if accepted by the jury, would provide that jury a reasonable basis to find that the defendant engaged in intentional or grossly negligent misconduct and impose punitive damages. See McLane, 400 So. 3d at 760–61 (citing Perlmutter, 376 So. 3d at 33–34). In other words, in its work as gatekeeper, the trial court does not weigh evidence to decide whether clear and convincing

5 Section 768.72(2)’s requirement that a plaintiff prove entitlement to punitive damages by clear and convincing evidence is important and informs the trial court’s evaluation of the reasonable basis for an award of such damages. See Inquiry Concerning Davey, 645 So. 2d 398, 404 (Fla. 1994) (explaining the clear and convincing evidence standard).

III.

Considering the requirements of Florida law, the trial court properly denied Medfast’s motion to amend its complaint to assert a claim for punitive damages.

6 Certainly, the trial court must consider any evidence proffered by the plaintiff. And the statute plainly provides that only a plaintiff is permitted to proffer evidence. See § 768.72(1), Fla. Stat.; see also Perlmutter, 376 So. 3d at 32–33. Nothing in the text of the statute permits a defendant to present a proffer or “counter-proffer” of its own.