SIXTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
Case No. 6D2025-0673
Lower Tribunal No. 2024-CA-000413
ESTANCIA US LIMITED PARTNERSHIP d/b/a LATITUDE 26 WATERFRONT RESORTS,
Appellant,
v.
TAMOY AJI-DAWKINS,
Appellee.
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Lee County.
Keith R. Kyle, Judge.
August 14, 2026
TRAVER, C.J.
Estancia US Limited Partnership challenges the trial court’s order granting
Tamoy Aji-Dawkins’ motion for leave to amend her complaint to seek punitive
damages. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(G). We reverse
because Aji-Dawkins failed to meet her statutory burden to make a “reasonable
showing by evidence in the record or proffered by the claimant which would provide
a reasonable basis for recovery of such damages.” See § 768.72(1), Fla. Stat. (2024).
Rather, her trial counsel repeatedly misrepresented the evidentiary record, causing the trial court to grant a pleading amendment based on those misrepresentations.1
We direct the Clerk of Court to forward a copy of this opinion to The Florida Bar.
I.
Aji-Dawkins sued Estancia for negligence on a premises liability basis,
alleging she had fallen off the second story of Estancia’s Fort Myers Beach hotel
when a railing collapsed in April 2023. Before Aji-Dawkins argued her motion to
amend her complaint to add punitive damages, she deposed Estancia’s owner and
his maintenance team, Robert Santiago and Eliasim Almestica. While the deposition
testimony about some events salient to Aji-Dawkins’ motion diverged, nobody
disputes that Hurricane Ian damaged the hotel in September 2022, collapsing a
corner of the hotel’s second-story outdoor walkway. Rather than restoring that
corner to pre-Ian conditions, Estancia’s owner decided to close off the now-missing
part of the walkway with PVC railings.
Santiago testified that he bought the PVC replacement railing that later
precipitated Aji-Dawkins’ lawsuit, but Almestica installed it. Santiago said that he
never tested it after Almestica installed it, and that the only conversation he had with
Estancia’s owner about the railing happened after Aji-Dawkins’ fall. He observed
1
Appellate counsel did not represent Aji-Dawkins below. To his credit, he acknowledged his colleague’s misrepresentations, but contended she may not have intentionally made them. Appellate counsel advanced a colorable but unpersuasive argument for affirmance based on the tipsy coachman doctrine.
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then that the railing was a “breakaway” railing, designed to collapse under pressure
and used “strictly for show.” Santiago also stated that he saw a child go through a
similar railing on the building’s first floor before Aji-Dawkins’ fall. But he offered
no testimony that he had informed Estancia’s owner about this previous incident.
Santiago also testified that he had one conversation with Almestica about the
railing, in which he asked him why he installed a “plastic railing.” This was the
“only conversation” he remembered having with Almestica about the railing being
plastic. He did not say that Estancia’s owner was present for this conversation, or
that it addressed a “breakaway” railing.
Almestica testified that he did not know who bought the replacement railing.
But Santiago instructed him to install the PVC railing on his fourth day of work in
January 2023. He said that he secured the railing properly and shook it vigorously
after installation to test it, concluding it was safe. He also said that Santiago
approved his work.
Estancia’s owner testified that his “maintenance team,” consisting of Santiago
and Almestica, proposed the PVC railing idea to him and bought the railing.
Because the railing was not aluminum, the owner went back to Home Depot to get
its specifications. He noted that it had “approvals,” and that after reviewing this
information, the maintenance team approved and installed the PVC railing. He did
not see the installation. But he inspected the installed PVC railing afterward. He
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shook the PVC railing, and it did not move. He claimed that he had never heard of
a “breakaway” railing. He also insisted that he had never heard of a prior railing
collapse at any of his properties.
Estancia’s owner authenticated a picture of the railing in its original
packaging. The packaging did not mention that the railing would collapse or
“breakaway,” or that it was “strictly for show.” Rather, it said the material was “our
strongest and most durable ever!” It also said that it was “code approved for your
safety” and listed an American Society for Testing and Materials report number in
support.
Aji-Dawkins moved to amend her complaint to seek punitive damages. She
based this request on Estancia’s alleged gross negligence. In her proposed amended
complaint, she alleged that Estancia “knew of the risk that the subject railing would
give-way at the application of reasonably expected forces prior to the time of [AjiDawkins’] incident” and that Estancia “knew that a substantially similar railing on
the property gave-way at the application of force by a child prior to the time of [AjiDawkins’] incident.” Aji-Dawkins later supplemented her motion with
documentation relating to Estancia’s insurance claim and the depositions of
Estancia’s owner, Santiago, and Almestica.
At the hearing on Aji-Dawkins’ motion, her trial counsel—the same attorney
who took the depositions—argued that the “testimony of the two maintenance
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employees” showed Estancia’s owner “instructed them to install a plastic breakaway
railing” after the owner purchased it. She said that Estancia’s owner did this
“knowing that that type of railing was not appropriate for use on a second-story
balcony, that it was something that would collapse if somebody leaned on it.” Later
in the hearing, she reiterated that Estancia’s owner had instructed “his maintenance
folks” to install the railing “knowing from their statements to him that it was
inappropriate to install that on the balcony and ignored that.”
In response to the trial court’s question about what testimony supported a
gross negligence determination, Aji-Dawkins’ trial counsel said that Estancia’s
owner told Almestica to install the railing after Almestica warned him that it should
not be used that way. Aji-Dawkins’ trial counsel reiterated that Almestica told
Estancia’s owner that the railing was a “breakaway railing” that was too weak for
second-story usage. She later said that Santiago had installed the railing, even
though he knew it was improper, and that Santiago had told Estancia’s owner that a
similar railing had broken on an earlier occasion when a child leaned on it. She later
insisted that Santiago had advised Estancia’s owner of this prior incident.
Relying on Aji-Dawkins’ trial counsel’s arguments, the trial court orally
granted leave to amend to seek punitive damages. It ruled that “the maintenance
worker” told Estancia’s owner not to install the railing because “it’s incorrect” and
“kids have gotten hurt.” It concluded that “an average person would say it’s
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outrageous to have placed a plastic bumper there without any further warning in light
of the fact that it was specifically advised not to be used.”
The trial court’s subsequent written order, prepared by Aji-Dawkins’ trial
counsel, noted that Santiago “testified that, prior to the incident, he advised
[Estancia’s owner] against installing the PVC railing because he previously observed
the same type of railing break away and fall to the ground when pressure was
applied.” The trial court noted that it based its written ruling solely on Santiago’s
testimony.
II.
We review de novo the trial court’s order allowing a pleading amendment to
add a claim for punitive damages. See Mercer v. Saddle Creek Transp., Inc., 389
So. 3d 774, 776 (Fla. 6th DCA 2024). A trial court does not act as a factfinder in
these types of proceedings, and neither do we. See Perlmutter v. Fed. Ins., 51 Fla.
L. Weekly S163, S166 (Fla. June 11, 2026); Turo, Inc. v. Mobley, 430 So. 3d 243,
247 (Fla. 6th DCA 2026). We do not weigh evidence, and it is not our role to
determine the truth of the matter. See Perlmutter, 51 Fla. L. Weekly at S166 (“[W]e
note that the express words of [section 768.72(1)] do not tie the reasonableness
inquiry to the trial-level standard of proof.”). We consider the record evidence in
the light most favorable to the plaintiff. See id. (citation omitted).
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The Florida Legislature has implemented a framework that governs claims for
punitive damages in civil actions. This framework “presumes that punitive damages
claims will be the exception in [these] actions, not the rule.” McLane Foodservice
Inc. v. Wool, 400 So. 3d 757, 760 (Fla. 3d DCA 2024). Indeed, “[p]unitive damages
are imposed not to compensate the plaintiff, but for punishment and deterrence.”
Perlmutter, 51 Fla. L. Weekly at S164 (citing Chrysler Corp. v. Wolmer, 499 So. 2d
823, 825 (Fla. 1986)).
Recently, the Florida Supreme Court clarified the showing a plaintiff must
make to obtain a pleading amendment to seek punitive damages. See id. It reiterated
that section 768.72(1) “creates a substantive legal right not to be subjected 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.” Id. (quoting Simeon, Inc. v. Cox, 671 So. 2d 158, 160 (Fla.
1996)). And “the test for deciding evidentiary sufficiency under section 768.72(1)
is whether a reasonable person could conclude, based on the claimant’s evidence,
that the defendant committed ‘intentional misconduct’ or ‘gross negligence,’ as
defined in section 768.72(2).” Id. at S166 (citation omitted). “‘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,
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resulting in injury or damage.” § 768.72(2)(a). “‘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)(b).
Section 768.72(3) addresses conditions under which an employer can face
punitive damages for the conduct of its employees or agents. A plaintiff must
alternatively show that: 1) “[t]he employer, principal, corporation, or other legal
entity actively and knowingly participated in such conduct”; 2) “[t]he officers,
directors, or managers or the employer, principal, corporation, or other legal entity
knowingly condoned, ratified, or consented to such conduct”; or 3) “[t]he employer,
principal, corporation, or other legal entity engaged in conduct that constituted gross
negligence and that contributed to the loss, damages, or injury suffered by the
claimant.” Id. § 768.72(3)(a)–(c). “If the claimant seeks to plead punitive damages
against an employer under a theory of vicarious liability, the evidentiary sufficiency
test also must ask whether a reasonable person could conclude that the claimant’s
evidence satisfies the substantive legal criteria set out in section 768.72(3).”
Perlmutter, 51 Fla. L. Weekly at S166.
Finally, we must “review the request for punitive damages in the context of
the underlying claims.” Id. (quoting LoanFlight Lending, LLC v. Wood, 388 So. 3d
1027, 1031 (Fla. 3d DCA 2024)). This is because a demand for “punitive damages
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never stand[s] alone” as a separate cause of action. Id. (quoting LoanFlight Lending,
LLC, 388 So. 3d at 1031). Rather, “it is auxiliary to, and dependent upon, the
existence of an underlying claim.” Id. (quoting Soffer v. R.J. Reynolds Tobacco Co.,
187 So. 3d 1219, 1221 (Fla. 2016)).
III.
In the context of Aji-Dawkins’ motion for leave to seek punitive damages, the
Perlmutter Court has described a pleading-based standard that does not require her
to prove her case. See id. at S167. But even under that standard, the evidentiary
record does not support Aji-Dawkins’ insistence that a reasonable person could
conclude that Estancia committed gross negligence.2 Aji-Dawkins’ purported
recitations of the maintenance team’s depositions not only lack record support; they
misrepresent the record. She pled her claims of gross negligence on two related
bases: 1) Estancia’s owner bought a plastic “breakaway” railing and instructed his
maintenance team to install it on the hotel’s second story, even though they told him
it was not appropriate or strong enough for that usage; and 2) Santiago told
Estancia’s owner that a child had broken a similar railing by leaning on it. The trial
court relied on these bases in granting Aji-Dawkins’ motion. In its oral ruling, it
2
We do not consider intentional misconduct because Aji-Dawkins’ claim against Estancia does not contemplate it. See Perlmutter, 51 Fla. L. Weekly at S166; see also Publix Super Mkts., Inc. v. Levi, 399 So. 3d 1212, 1214 (Fla. 2d DCA 2024) (“Because Levi’s suit sounded in negligence, we examine only whether he has made a reasonable showing that Publix was grossly negligent.”).
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found that “kids have gotten hurt” because of a prior incident involving a
“breakaway” railing. In its written order, prepared by Aji-Dawkins’ trial counsel, it
determined Santiago “testified that, prior to the incident, he advised [Estancia’s
owner] against installing the PVC railing because he previously observed the same
type of railing break away and fall to the ground when pressure was applied.”
These arguments lack evidentiary support. Santiago testified that either he or
Almestica, not Estancia’s owner, bought the railing. And Santiago offered the only
testimony relating to its “breakaway” nature. He swore, though, that he did not tell
Estancia’s owner that the railing was not appropriate for its installed use until after
Aji-Dawkins’ fall.
Almestica was the only other member of Estancia’s maintenance team. At
one point, Aji-Dawkins’ trial counsel argued that Almestica told Estancia’s owner
not to install the railing because it was a dangerous “breakaway” railing. But
Almestica testified that Santiago told him to install the railing, and that no one
expressed any concerns about its safety. And Almestica never called it a
“breakaway” railing.
Santiago offered the only testimony relating to the prior incident about a child
getting hurt. But he never said that he told Estancia’s owner about it. Based on the
arguments presented to the trial court, no reasonable person could conclude that
Estancia committed gross negligence.
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IV.
Because Aji-Dawkins failed to make a “reasonable showing by evidence in
the record or proffered by the claimant which would provide a reasonable basis for
recovery of such damages,” we reverse for the trial court to vacate its order allowing
her to amend her complaint. See § 768.72(1).
But regrettably, our opinion must not stop here. Counsel has a duty of candor
to the court. See R. Regulating Fla. Bar 4-3.3. This includes an obligation to correct
a false statement of material fact or law previously made. Id. The Oath of
Admission to The Florida Bar requires attorneys to swear that they “will never seek
to mislead the judge or jury by any artifice or false statement of fact or law.” Counsel
further has a duty of competence. See R. Regulating Fla. Bar 4-1.1. This “requires
the legal knowledge, skill, thoroughness, and preparation reasonably necessary for
representation.” Id.
Our system is doomed to fail if lawyers do not comply with these basic
principles. Trial courts should not have to verify the truth of every statement a
lawyer makes, and indeed, the sheer number of cases before them precludes it.
Lawyers must always tell the truth, even if it does not benefit their case. AjiDawkins’ trial counsel has fallen short of this standard, and so we direct the Clerk
of Court to provide a copy of this opinion to The Florida Bar for further
investigation.
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REVERSED and REMANDED with instructions.
WOZNIAK and WHITE, JJ., concur.
Alan M. Pierce, of Liebler, Gonzalez & Portuondo, Miami, for Appellant.
Brian J. Lee, of Morgan & Morgan, Jacksonville, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF TIMELY FILED
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