Fourth DCA (FL)
Selz v. McKagen
4th DCA, 3/6/24
No. 4D2023-0099, 2024 WL 948894
Per Curiam (Warner, Gross, and Conner)
Topics: Punitive Damages
In January, the Fourth DCA reversed a trial court’s order allowing a plaintiff to seek punitive damages against a tenant where, from the facts, it certainly appeared that the party filed fraudulent liens intended to harass and defraud and hamper the landlord’s sale of the property in question. The attorney actually knew that there had been no prior determination by any Court that an equitable lien be entered when he falsely filed it. The DCA read the facts to mean that the owner, however, only knew “or should have known” what he was doing was wrong, and a “should have known” finding does not justify punitive damages. . Therefore, he materially knew that the document he prepared was false and fictitious. Attorney Selz knew that the lien would interfere with the ability to sell the property.
JUDGE WARNER CONCURRED SPECIALLY, noting that he was bound to follow a Fourth DCA opinion from December, but, as he had noted in his dissent in that case, he disagreed with the majority’s interpretation of the punitive damages statute.
And now, two months later, the DCA has ruled on post-appeal motions and has agreed to CERTIFY EXPRESS AND DIRECT CONFLICT with five decisions out of the Second and Fifth DCAs. AFFIRMED.
