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Fla. L. Weekly D1064aTop of Form

Appeals
— Torts — Plaintiff abandoned her claim that trial court erred by denying her
motion for new trial based on claim that jury erred in awarding zero damages
for past pain and suffering upon filing of first notice of appeal in which the
sole argument raised was that the trial court erred in its determination
regarding causation — Pursuant to rule in effect at time plaintiff filed motion
for new trial, all motions filed by appealing party that were pending at time
notice of appeal was filed were deemed abandoned — Amendment to rule
9.020(i)(3) which provides that appeal shall be held in abeyance until pending
motion for new trial is disposed of does not have retroactive effect to undo
the abandonment of a motion when the notice of appeal was filed prior to
effective date of amendment

HEIDI CHRISTAKIS, Appellant, v.
TIVOLI TERRACE, LLC, Appellee. 4th District. Case No. 4D16-1890. May 10, 2017.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward
County; Michael L. Gates, Judge; L.T. Case No. 12-17744 (12). Counsel: Justin
R. Parafinczuk and Marcus J. Susen of Koch Parafinczuk & Wolf, P.A., Fort
Lauderdale, for appellant. Eduardo Cosio and Julie Bork Glassman of Cosio Law
Group, Coral Gables, for appellee.

(FORST, J.) This case comes to us
for the second time on appeal. In its first appearance, we reversed the trial
court’s judgment notwithstanding the verdict, holding that there was
conflicting evidence as to the cause of Appellant Heidi Christakis’s injuries. Christakis
v. Tivoli Terrace, LLC, 181 So. 3d 579, 579-80 (Fla. 4th DCA 2016).
Importantly for present purposes, at no point during that prior appeal did Appellant
make any suggestion to this Court that there was any error in the jury’s award
of damages; her sole argument was that the trial court erred in its
determination regarding causation. In the instant appeal, Appellant argues
that, in the proceedings following this Court’s remand, the trial court erred
by denying her motion for new trial which was based on the claim that the jury
erred in awarding her no damages for past pain and suffering. We need not
comment on the merits of this claim, however, because we hold that Appellant
abandoned her motion for new trial upon filing her first notice of appeal.

Background

Prior to Appellant’s first appeal,
the jury had found that Appellee Tivoli Terrace, LLC, was 10% liable and
Appellant was 90% liable for her negligence claim. The jury determined that
Appellant had paid approximately $90,000 for past medical expenses, but
suffered $0 worth of past pain damages. The trial court entered an order
directing a verdict in favor of Appellee on the issue of negligence, finding
that Appellee was not the cause of Appellant’s injuries at all. Appellant moved
for reconsideration of this order and for a new trial on pain damages. The
trial court denied Appellant’s motion for reconsideration of the directed
verdict order, but never ruled on the motion for new trial on damages.
Appellant filed an appeal in September 2014, generating the first case
discussed above. Again, we emphasize that at no point during the first appeal
was the issue of damages ever raised; the sole error presented to this Court
was the issue of causation. Our opinion in the first appeal was released on
January 6, 2016, reversing the trial court’s entry of directed verdict and
remanding “for entry of a judgment upon the jury verdict.” Christakis,
181 So. 3d at 580. Following the release of that opinion, Appellant filed in
the trial court a renewed motion for new trial on pain damages. The trial court
denied that motion without explanation and entered a new final judgment in
accordance with the jury’s original verdict. Appellant now appeals the denial
of her renewed motion for new trial.

Analysis

On January 1, 2015, Florida Rule of
Appellate Procedure 9.020(i)(3) was amended. Prior to that date, it read in
relevant part “[i]f [a motion for new trial has] been filed and a notice of
appeal is filed before the filing of a signed, written order disposing of all
such motions, all motions filed by the appealing party that are pending at
the time shall be deemed abandoned.” In re Amendments to Fla. Rules of
Appellate Procedure, 183 So. 3d 245, 249 (Fla. 2014) (emphasis added). The
January 2015 amendment changed this rule to read “[i]f [a motion for new trial
has] been filed and a notice of appeal is filed before the filing or a signed,
written order disposing of all such motions, the appeal shall be held in
abeyance until the filing of a signed, written order disposing of the last
such motion.” Id. (emphasis added).

Although there is a presumption that
a change in law has only prospective application, this presumption does not
exist for “remedial” legislation. Arrow Air, Inc. v. Walsh, 645 So. 2d
422, 424 (Fla. 1994). But legal changes that “accomplish[ ] a remedial purpose
by creating substantive new rights” maintain the presumption of prospective
application only. Id. (citing City of Lakeland v. Catinella, 129
So. 2d 133, 136 (Fla. 1961)). Appellant’s argument that the amendment here did
not grant her a new right is without merit. In September 2014, Appellant had
abandoned her right to have her motion for new trial heard, and instead had
only the right to challenge the judgment on appeal. On January 1, 2015, per her
argument, she did have the right to have her motion for new trial heard. This
would have been a new right, and therefore the presumption is that the
amendment does not have retroactive effect to apply to Appellant’s case.1

We therefore hold that the January
1, 2015 amendment to Florida Rule of Appellate Procedure 9.020(i)(3) does not
have retroactive effect to undo the abandonment of a motion when the notice of
appeal was filed before January 1, 2015. Appellant’s September 2014 notice of
appeal abandoned her motion for new trial, and her failure to raise the issue
of damages in her first appeal waives her argument on that point. Our decision
is in accord with an earlier opinion of this Court and at least two other
District Courts of Appeal opinions, each stating in a footnote that the case
was not controlled by the amended rule, as the rule was amended during the
pendency of the appeal. See Johnson v. State, 154 So. 3d 1184, 1186 n.1
(Fla. 4th DCA 2015); Wallen v. Tyson, 174 So. 3d 1058, 1060 n.1 (Fla.
5th DCA 2015); Dep’t of Revenue v. Vanamburg, 174 So. 3d 640, 642 &
n.1 (Fla. 1st DCA 2015).

Conclusion

The January 1, 2015 amendment to
Rule 9.020(i)(3) does not have retroactive effect to revive a motion previously
abandoned through the filing of a notice of appeal. We therefore affirm.

Affirmed. (DAMOORGIAN and GERBER, JJ., concur.)

__________________

1We note
that this opinion does not address whether the amendment would have applied to
Appellant’s case had her notice of appeal been filed after January 1, 2015.
Neither the fact that the case was pending at the time of the amendment nor the
fact that the motion itself was filed before the time of the amendment is
dispositive here; our holding is because Appellant’s notice of appeal had been
filed before the date of the amendment.

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