Employer-employee
relations — Retaliatory discharge for filing workers’ compensation claim —
Damages — Award of damages was excessive in light of absence of medical
evidence that employer’s conduct caused employee’s medical condition to worsen
or caused employee to suffer past or future psychological harm — Remand for
remittitur or new trial — Judgment improperly awarded post-verdict interest —
Error to deny leave for employee to assert claim for punitive damages where
there was a reasonable showing of a basis for recovery of such damages —
Attorney’s fees — Offer of judgment — Although complaint made passing
reference to equitable relief, action was one for damages, and plaintiff would
be entitled to attorney’s fees under offer of judgment statute if he recovers a
judgment in an amount at least 25 percent greater than the offer

FAITH
FREIGHT FORWARDING CORPORATION, Appellant/Cross-Appellee, v. CARLOS ANIAS,
Appellee/Cross-Appellant. 3rd District. Case No. 3D14-2653. L.T. Case No.
10-3954. September 28, 2016. An Appeal from the Circuit Court for Miami-Dade
County, Spencer Eig, Judge. Counsel: WermuthLaw, P.A., and J. Michael Wermuth
and Osnat Dorot; Hicks, Porter, Ebenfeld & Stein, P.A., and Shannon Kain
(Hollywood) and Mark Hicks, for appellant/cross-appellee. Sina Negahbani, for
appellee/cross-appellant.

(Before
ROTHENBERG, LAGOA, and LOGUE, JJ.)

CORRECTED
OPINION

[Original Opinion at 41 Fla. L. Weekly D2096b]

(LOGUE,
J.) We withdraw this Court’s opinion dated September 7, 2016, and substitute
the following corrected opinion in its stead.

In
a case arising out of a retaliatory discharge for seeking workers’ compensation
benefits, Faith Freight Forwarding Corporation (“Employer”) appeals the final
judgment entered in favor of Carlos Anias (“Employee”) and the denial of its
motion for remittitur. The Employee cross-appeals the orders denying leave to
assert a claim for punitive damages and entitlement to attorneys’ fees.

We
affirm the jury’s finding of liability. But, in light of the absence of medical
evidence that the Employer’s conduct caused the Employee’s medical condition to
worsen or caused the Employee to suffer past or future psychological harm, we
conclude that the jury’s award of $750,000 was excessive. The fact that the Employee
cried on the stand, as noted by his lawyer at oral argument, simply is not
sufficient. See Glabman v. De La Cruz, 954 So. 2d 60, 63 (Fla. 3d
DCDA 2007) (“[A]fter careful review of the record, we are compelled to reverse
the jury verdict on damages as they are so excessive that they could only have
been a product of passion and emotion based on [the plaintiff’s] emotional
testimony rather than the result of the record presented.”); Olen Props.
Corp. v. Cancel, 178 So. 3d 437 (Fla. 4th DCA 2015) (“In this sex
discrimination and retaliation case, we reverse the $700,000 award of
non-economic damages as excessive.”); City of Hollywood v. Hogan, 986
So. 2d 634, 647 (Fla. 4th DCA 2008) (“The jury awarded each plaintiff
$1,183,544. Of that sum, $1,100,000 was awarded for compensatory damages other
than lost wages. We conclude that the award to each individual for the
non-economic damages was grossly excessive.”); Ernie Haire Ford, Inc. v.
Atkinson, 64 So. 3d 131, 133 (Fla. 2d DCA 2011) (reversing $3.5 million in
noneconomic damages and $1.7 million in damages for past and future lost wages,
where the noneconomic damages award was excessive and the damages for past and
future lost wages were not supported by the evidence).

Similar
to Glabman, Hogan, and Atkinson, the failure to grant the
motion for remittitur constituted an abuse of discretion. We remand for the
trial court to determine a remittitur amount, or order a new trial on damages
if the party adversely affected by the remittitur does not agree to the remitted
amount. See § 768.74(4), Fla. Stat. (2014). We also note that the final
judgment improperly awarded post-verdict interest. See Amerace Corp.
v. Stallings, 823 So. 2d 110, 114 (Fla. 2002); Ford Motor Co. v. Jimenez,
870 So. 2d 831, 833 (Fla. 3d DCA 2003) (“The Amerace decision
establishes the general rule that interest is not awardable for the period
after the verdict but before the judgment.”). Without discussion, we reject the
other arguments raised by the Employer.

Turning
to the Employee’s cross appeal, we reverse the order denying leave to assert a
claim for punitive damages. Contrary to the trial court’s conclusion, there was
“a reasonable showing by evidence in the record or proffered by the claimant
which would provide a reasonable basis for recovery of such damages.” §
768.72(1), Fla. Stat. (2014).

Finally,
we reverse the order which held the Employee’s offer of judgment pursuant to
section 768.79, Florida Statutes (2014), was invalid. Section 768.79(1) applies
“[i]n any civil action for damages filed in the courts of this state . . . .”
In construing the term “action for damages,” the Florida Supreme Court held
that section 768.79 is inapplicable in cases where the plaintiff sought both
damages and equitable relief. Diamond Aircraft Indus., Inc., v. Horowitch,
107 So. 3d 362, 374 (Fla. 2013). This case, however, is unlike Diamond
Aircraft. Instead, this case more closely resembles DiPompeo
Construction Corp. v. Kimmel & Associates, Inc., 916 So. 2d 17 (Fla.
4th DCA 2005), where the plaintiff’s claim was an action for damages because
the “real issue” before the court was whether the plaintiff owed the
compensation.

The
Employee’s passing reference to “equitable relief” in the operative complaint
does not change our conclusion, particularly where, as here, the Employer could
not identify any equitable relief that was ever at issue in the discovery or
trial of this matter. See id. at 18 (“[T]his court has looked
behind the procedural vehicle used to bring a lawsuit and focused on whether
the ‘real issue’ in the case is one for damages.”); see also Diamond
Aircraft, 107 So. 3d at 373 (citing DiPompeo with approval). Thus,
the Employee is entitled to recover attorneys’ fees under the offer of judgment
statute if, after the issue of damages has been fully resolved on remand, it
“recovers a judgment in an amount at least 25 percent greater than the offer.”
§ 768.79(1).

For
these reasons, we affirm the jury’s finding of liability, but we reverse the
jury’s award of damages, the trial court’s award of post-verdict interest, the
order denying leave to assert a claim for punitive damages, and the order
denying entitlement to attorneys’ fees pursuant to the offer of judgment
statute.

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