Fostock v. Lampasone
Moustapha FOSTOCK, Appellant,
Andrew LAMPASONE, Appellee.
District Court of Appeal of Florida,
March 4, 1998.
711 So.2d 1154
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.
 DAMAGES k162
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.
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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,
Dan Cytryn of Law Offices Cytryn and Santana, P.A., Tamarac, for appellee.
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.
 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.