Fostock

Moustapha FOSTOCK, Appellant,

v.

Andrew LAMPASONE, Appellee.

No. 97-1488.

District Court of Appeal of Florida,

Fourth District.

March 4, 1998.

Rehearing, Rehearing En Banc

and Certification of Question

Denied April 22, 1998.

After default judgment in intentional tort case was entered against defendant who had allegedly extinguished his cigar on plaintiff's cheek, the Circuit Court, Broward County, George A. Brescher, J., awarded plaintiff punitive and compensatory damages. Defendant appealed. The District Court of Appeal held that defendant's failure to respond to initial complaint waived his of right to relief from punitive damages award.

Affirmed.

[1] DAMAGES k162

115k162

Civil defendant's failure to appear, which resulted in default judgment in intentional tort action, waived his right to relief from punitive damages award, even though he would have been entitled to dismissal of punitive damages had he responded to initial complaint and moved to strike. West's F.S.A. s 768.72.

[2] DAMAGES k151

115k151

Defendant's right to relief under statute governing punitive damages awards is right that can be waived by failing to assert it. West's F.S.A. s 768.72.

*1155 Kimberly Hall Doyle of Atkinson, Diner, Stone & Mankuta, P.A., Hollywood, for appellant.

Dan Cytryn of Law Offices of Cytryn and Santana, P.A., Tamarac, for appellee.

PER CURIAM.

Appellant, Moustapha Fostock, appeals a judgment awarding appellee, Andrew Lampasone, compensatory and punitive damages. The lawsuit arose out of an incident where Fostock smashed the burning end of his cigar into Lampasone's cheek. Fostock was properly served with the summons and complaint. He did not respond and the trial court entered a default against him. The original complaint sought both compensatory and punitive damages. Fostock did not appear at a properly noticed jury trial on the issue of damages. The jury awarded compensatory and punitive damages.

[1][2] On appeal, Fostock argues that the trial court's failure to comply with the procedure set out by section 768.72, Florida Statutes (1995), was fundamental error. That section states that

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.

Id. Had Fostock responded to the initial complaint with a motion to dismiss or strike, he would have been entitled under section 768.72 to a dismissal of the punitive damages aspect of the case. See Kraft General Foods, Inc. v. Rosenblum, 635 So.2d 106 (Fla. 4th DCA 1994). However, a defendant's right to relief under section 768.72 is a right that can be waived by failing to assert it. See Solis v. Calvo, 689 So.2d 366, 368 (Fla. 3d DCA 1997). As the third district has observed

[t]he protection afforded by the statute is the right not to be subjected to the burdens of defending punitive damage claims. The defendants apparently did not feel that they were burdened enough by the punitive damage claim to file a motion to strike.

Id. at 368-69. In this case, the defendant was not burdened enough by the entire lawsuit to even make an appearance, so he waived his right to have the statute enforced.

On the remaining issue, we find that the uncontroverted evidence at trial, where there was no fundamental error, supports the award of punitive damages.

DELL and GROSS, JJ. and OWEN, WILLIAM C., Jr., Senior Judge, concur.

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Calloway	Doe
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