Third District Court of Appeal
State of Florida
Opinion filed August 26, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D24-2096
Lower Tribunal Nos. 14-23694-CA-01, 19-014336-CA-01
Richard Goldman, et al.,
Appellants,
vs.
Jonathan Lewin,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Spencer Eig, Judge.
Schlesinger Law Group and Michael J. Schlesinger, for appellants.
GrayRobinson, P.A., and Jack R. Reiter and Richard Danese, for appellee.
Before FERNANDEZ, MILLER and LOBREE, JJ.
LOBREE, J.
Richard, Kenneth, and Mitchel Goldman (collectively, “the Goldmans”) appeal an order granting the motion for leave to amend and add a demand
for punitive damages by Jonathan Lewin, individually, and as Successor
Trustee of the Aaron Goldman Revocable Trust, and as personal
representative of the Estate of Aaron Goldman (“Lewin”). For the reasons
discussed below, we affirm in part and reverse in part.
BACKGROUND
This case arises out of a series of lawsuits between the Goldmans and
their cousin Lewin regarding their uncle Aaron Goldman’s estate. Aaron
prepared estate plans in 1998 and 2005 which both named Lewin as the sole
living beneficiary and personal representative of Aaron’s Estate and as
trustee of Aaron’s Trust. In 2007, Lewin was appointed as Aaron’s plenary
guardian after guardianship proceedings were initiated due to Aaron’s lack
of capacity. Aaron eventually passed away on September 3, 2010. His
death led to the lawsuits that underlie this claim for punitive damages.
The Goldmans first filed a petition for intestate administration alleging
that the 1998 and 2005 wills were invalid due to lack of capacity, and seeking
to have Richard appointed as personal representative (the “Probate Action”).
The Probate Action was later dismissed with prejudice in June 2011, which
this court affirmed. See Goldman v. Lewin, 116 So. 3d 568 (Fla. 3d DCA
2013). Shortly after filing the Probate Action, Richard and Kenneth Goldman
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filed a separate action against Lewin seeking to set aside Aaron’s trust based
on incapacity, undue influence, breach of fiduciary duty, and tortious
interference with expectancy of inheritance (the “Trust Action”). Final
judgment was eventually entered in favor of Lewin in 2012, and this court
affirmed. See id. Richard also filed a petition to extinguish the beneficial
interests of Lewin and Pearl Goldman, Lewin’s mother, alleging that they
acted as co-conspirators to cause Aaron’s death by feeding him excessive
salt and/or withholding his medication and generally took advantage of Aaron
and his assets through intimidation, exploitation, and undue influence (“the
Slayer Action”). That matter was dismissed without prejudice in 2011.
Following the initiation of those three actions, Lewin filed this lawsuit
against the Goldmans for abuse of process and conspiracy to abuse process
and against Richard and Kenneth for malicious prosecution based on the
Trust Action. In 2022, Lewin moved to amend his second amended
complaint to add a claim for punitive damages against the Goldmans based
on intentional misconduct—namely, abuse of process, conspiracy to abuse
process, and malicious prosecution. The Goldmans moved in opposition
and filed a counter-proffer in support. The matter proceeded to two hearings
in September 2023 and October 2024. The trial court then entered an
unelaborated written order granting Lewin’s motion for leave to amend and
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add a claim for punitive damages. This appeal followed.
ANALYSIS
A trial court’s decision on a motion for leave to amend to add a claim
for punitive damages is reviewed de novo. See Grove Isle Ass’n v. Lindzon,
350 So. 3d 826, 829 (Fla. 3d DCA 2022). The Goldmans contend the trial
court erred by failing to make oral or written findings of fact and by granting
Lewin’s motion.
Under section 768.72(1), Florida Statutes (2024), “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.” Contrary to the Goldmans’
argument, nothing in section 786.72(1) specifically requires the trial court to
make affirmative findings regarding what evidence it relied on when granting
a motion for leave to amend and add a claim for punitive damages. While
this Court has previously concluded that a trial court’s failure to make findings
“identifying the evidence it considered sufficient to provide a statutory
‘reasonable basis’ for granting the motion to amend. . . . was a departure
from applicable law,” Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071,
1075 (Fla. 3d DCA 2019), we find that decision has been superseded by the
Florida Supreme Court’s recent opinion in Perlmutter v. Federal Insurance
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Co., 434 So. 3d 681 (Fla. 2026).
In Perlmutter, the Florida Supreme Court concluded that “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 688. It clarified that a “trial court should
consider only the evidence identified or proffered by the claimant” and
“should not entertain an evidentiary counter-submission from the opponent.”
Id. This clarification renders the need for a trial court to make findings of fact
when granting a motion for leave to amend superfluous. In fact, the Florida
Supreme Court specifically noted that “[t]he trial court does not act as a factfinder in a proceeding under section 768.72(1). It must not weigh the
claimant’s evidence, meaning that its role is not to decide the truth of the
matter.” Id. at 689. In conducting its review, the trial court must simply
consider the claimant’s evidence “in the light most favorable to the plaintiff”
and determine whether it shows a reasonable evidentiary basis to support
the allegations in the proposed amended complaint. Id. (quoting Hosp.
Specialists, P.A. v. Deen, 373 So. 3d 1283, 1287 (Fla. 5th DCA 2023)).
Thus, requiring a trial court to provide findings of what evidence it relied on
when reaching its determination on a motion for leave to amend and add a
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claim for punitive damages would be unnecessarily duplicative as Perlmutter
makes it clear the trial court should only consider the evidence proffered by
the claimant.
Applying this standard, and considering only the evidence submitted
by Lewin, we conclude that the trial court did not err in allowing Lewin to bring
punitive damages claims against Richard and Mitchel Goldman. Lewin
proffered evidence that Richard and Mitchel verified the pleading and
allegations in the Probate Action without evidence or personal knowledge.
Against Richard, Lewin also proffered evidence that Richard verified the
pleading and allegations in the Trust Action without evidence or personal
knowledge to support the allegations and induced his siblings into signing
onto the Probate Action despite his lack of knowledge, and that Richard
brought the Slayer Action raising accusations of a conspiracy between Lewin
and his mother to murder Aaron without evidence or personal knowledge
despite being under penalty of perjury. Against Mitchel, Lewin further
proffered evidence that Mitchel admitted knowing he was not named in either
of Aaron’s wills as a beneficiary and that Aaron had capacity when executing
the wills, which conflicts with the allegations of the Probate Action that
Mitchel certified were correct. This evidence, viewed in the light most
favorable to Lewin, could reasonably support a finding that Richard and
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Mitchel committed intentional misconduct1 as defined in section 786.72(2).
See § 768.72(2)(a), Fla. Stat. (“‘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.”).
However, we conclude that the trial court erred in allowing a punitive
damages claim against Kenneth. While Lewin proffered evidence that
Kenneth brought the Probate and Trust Actions without evidence or personal
knowledge to support the allegations, this conduct alone does not meet the
statutory definition of intentional misconduct. Louis v. Costco Wholesale
Corp., 719 So. 2d 1226, 1228 (Fla. 4th DCA 1998) (“While an absence of
probable cause can result in a finding of legal malice, legal malice, based
solely on the absence of probable cause, is insufficient to support an award
of punitive damages.”). Lewin therefore did not proffer sufficient evidence to
show Kenneth “had actual knowledge of the wrongfulness of the conduct and
the high probability that injury or damage to [Lewin] would result.” §
768.72(2).
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It is undisputed that Lewin’s claims for punitive damages for abuse of process, aiding and abetting abuse of process, and malicious prosecution against the Goldmans are based on intentional misconduct.
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CONCLUSION
We affirm in part and reverse in part the trial court’s order granting
Lewin’s motion for leave to amend the complaint to plead punitive damages.
We affirm the order as to Richard and Mitchel Goldman because Lewin
presented sufficient evidence to establish a reasonable basis for recovery of
punitive damages against them based on intentional misconduct. We
reverse the order as to Kenneth Goldman because Lewin did not present
sufficient evidence to establish a reasonable basis to conclude he was guilty
of intentional misconduct warranting punitive damages.
Affirmed in part, reversed in part and remanded for further
proceedings.
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