Wrongful
death — Medical malpractice — Damages — Interest — Where amount of judgment
is modified on appeal, post-trial interest accrues from date of original
judgment, rather than from date of verdict — Where trial court entered
judgment which limited noneconomic damages, and appellate court reversed that
part of judgment that reduced noneconomic damages after statute providing a cap
on noneconomic damages was held to be unconstitutional, in entering amended
judgment on remand, trial court erred in awarding interest from date of jury
verdict — Amended judgment should have awarded post-trial interest from date
of original judgment

JAMES R. SHOEMAKER, D.O., AND ORMOND MEDICAL, ETC.,
Appellants, v. SONIA SLIGER, AS PERSONAL, ETC., Appellee. 5th District. Case
No. 5D14-3871. Opinion filed February 12, 2016. Appeal from the Circuit Court
for Orange County, R. James Stroker, Judge. Counsel: Dinah Stein, Mark Hicks,
and Mary Gniadek, of Hicks, Porter, Ebenfeid & Stein, P.A., Miami, for
Appellants. David J. Sales, of David J. Sales, P.A., Jupiter, and Stephen Knox,
of Morgan & Morgan, P.A., Orlando, for Appellee.

(EDWARDS, Judge.) In entering the amended final judgment in
the underlying wrongful death action, the trial court determined that when the
amount of the judgment is modified on appeal, Florida Rule of Appellate
Procedure 9.340(c) requires post-trial interest to accrue from the date of the
verdict, rather than from the date of the original judgment. For the reasons
discussed below, we disagree and reverse.

On October 11, 2011, a jury rendered a verdict of $7,509,510
in the underlying medical malpractice action, finding Dr. James R. Shoemaker1 (“Appellant”) forty percent at fault
for Stephen Sliger’s death. Appellant and his co-defendants filed a motion to
limit non-economic damages pursuant to section 766.118(2), Florida Statutes
(2011). The motion argued that, pursuant to section 766.118, the noneconomic
damages in this case should be limited to a total of $500,000. Sonia Sliger, as
Personal Representative for Stephen Sliger’s Estate (“Appellee”), filed a
response to that motion in which she alleged that “[s]ection 766.118’s damage
caps violate several provisions of the Florida and U.S. constitutions and
cannot be enforced.”

On February 29, 2012, after a series of hearings on the
post-trial motions, the trial court entered a final judgment against Appellant
in the amount of $1,386,260, representing Appellant’s portion of fault in the
medical malpractice action and applying section 766.118’s cap on the noneconomic
damages.

After the final judgment was rendered, both parties appealed
to this Court, with Appellee challenging the trial court’s reduction of
the noneconomic damages. This Court issued a per curiam affirmance in November
2013. See Shoemaker v. Sliger, 127 So. 3d 525 (Fla. 5th DCA 2013)
(unpublished table decision). In March 2014, the Florida Supreme Court decided Estate
of McCall v. United States, 134 So. 3d 894 (Fla. 2014). In McCall,
the supreme court held that “section 766.118 violates the Equal Protection
Clause of the Florida Constitution under the rational basis test.” 134 So. 3d
at 901. Thus, the court determined that the “statutory cap on wrongful death
noneconomic damages fails because it imposes unfair and illogical burdens on
injured parties when an act of medical negligence gives rise to multiple
claimants.” Id. at 901.

In May 2014, following the McCall decision, this
Court withdrew its prior opinion and “reverse[d] that part of the judgment
under review that reduced the award of wrongful death non-economic damages to
Sliger pursuant to section 766.118.” Shoemaker v. Sliger, 141 So. 3d
1225, 1225 (Fla. 5th DCA 2014). The Court then “remand[ed] the case to the
trial court to enter an amended judgment in accordance with the jury verdict
without any reduction under section 766.118” and affirmed “as to all other
issues raised by the parties.” Id.

Appellee then moved the trial court for entry of an amended
final judgment without the section 766.118 reduction. Attached to Appellee’s
motion was a proposed amended final judgment that contained a paragraph
awarding Appellee interest from the date of the jury verdict, October 11, 2011.
Appellant filed a response in opposition contending that the amended final
judgment proposed by Appellee was incorrect, and asserting that Appellee was
entitled to interest on the entire amount from the date of the original
judgment, but was not entitled to post-verdict, pre-judgment interest. The
trial court entered an amended final judgment on remand, awarding Appellee
interest from the date of the jury verdict. Appellant timely appealed the
amended final judgment.

Ordinarily, interest on a money judgment in a tort case
begins to accrue on the date that the trial court enters the judgment fixing
the amount of the monetary award. See Amerace Corp. v. Stallings,
823 So. 2d 110, 112 (Fla. 2002); see also § 55.03, Fla. Stat. (2014). On
the other hand, when a jury trial concludes without the entry of a money
judgment, and an appeal is taken that results in the appellate court reversing
and remanding for entry of a money judgment, rule 9.340(c) sets the post-trial
interest accrual date as the date of the verdict. The rule states:

If
a judgment of reversal is entered that requires the entry of a money judgment
on a verdict, the mandate shall be deemed to require such money judgment to be
entered as of the date of the verdict.

Fla. R. App. P. 9.340(c). But for the rule, in a case where
a money judgment was not entered below, interest would only begin to accrue
after the court of appeal ruled, after the appellate motions for rehearing were
resolved, after the mandate issued, and once the judgment for money damages was
finally entered, regardless of how many months intervened between the verdict
and entry of the money judgment. Delaying interest in that fashion would
financially punish the successful appellant by depriving post-trial interest
for a considerable time. The rule avoids this unfair result.

However, where the trial court originally entered a money
judgment and only the amount of the award is modified after an appeal, there is
no logical reason to employ the rule. Under those circumstances, there is
already a starting point for the accrual of interest, namely the date on which
the original judgment was entered. Amerace, 823 So. 2d 110. The rule, by
its plain language, applies only when the reversal calls for entry of a money
judgment; it does not address, and therefore does not apply, where the mandate
requires entry of an amended final judgment that only changes the amount of the
monetary award.

In Amerace, the jury found the defendant sixty
percent at fault for the plaintiffs’ personal injury and awarded them $1
million. 823 So. 2d at 111. The trial court subsequently ordered a remittitur
of the amount awarded for medical bills. Id. at 112. Plaintiffs accepted
the remittitur and the trial court entered final judgment approximately five
months after the jury’s verdict. Id. The trial court also denied the
plaintiffs’ request for interest between the verdict date and the final
judgment date Id. On appeal, the Second District Court of Appeal
“affirm[ed] the final judgment in all respects except the issue of prejudgment
interest.” Id. (alteration in original). The Florida Supreme Court
quashed the Second District’s decision and held that “the trial court properly
denied the plaintiffs’ request for interest between the verdict date and the
final judgment date.” Id. at 114.

In reaching this conclusion, the supreme court discussed Green
v. Rety, 616 So. 2d 433 (Fla. 1993), in which the trial court “sua sponte
withheld judgment and entered an order of remittitur and an alternative order
for a new trial on damages.” Amerace, 823 So. 2d at 113. On appeal, the
Third District Court of Appeal “decreased the amount to be remitted” and
provided plaintiff “with a reasonable time within which to accept or reject
it.” Id. Once the remittitur was accepted, the trial court entered a
final judgment and awarded post-trial interest from the date of the verdict. On
appeal, the Third District certified the question to the Florida Supreme Court
which held that “pursuant to [rule 9.340(c)], the date of the verdict controls and
all interest should be computed from the date of the verdict.” Id.
(citing Green, 616 So. 2d at 435) (footnote omitted). The Amerace
court distinguished Green by finding that “[t]he controversy in Green
arose because the trial court originally withheld judgment [and since] the
appellate process can last several months or even years, rule 9.340(c) provides
that, in cases such as Green, interest should be computed from the date
of the verdict.” Id. The court further reasoned that “[i]n contrast to Green,
judgment was entered in the present case” and, thus, plaintiffs were not
entitled to post-verdict, pre-judgment interest. Id. at 113-14.
Similarly, here, the trial court entered a final money judgment prior to the
first appeal.

We acknowledge that the Fourth District Court of Appeal
reached a different conclusion in Hyundai v. Ferayorni, 876 So. 2d 680
(Fla. 4th DCA 2004). Ferayorni, a products liability case, resulted in a
$6.5 million dollar verdict for plaintiff, with a judgment entered shortly
after the trial. 876 So. 2d at 681. The trial court ordered a $3 million dollar
remittitur. Id. On appeal, the Fourth District affirmed on liability,
reversed as to the remittitur, and ordered the trial court to re-enter the $6.5
million dollar judgment. Id. at 682. We disagree with our sister court’s
conclusion that rule 9.340(c) applies to all post-appeal amended money
judgments. Indeed, in Amerace, the Florida Supreme Court held that the
rule applies in cases, such as Green, where no money judgment was
entered below. 823 So. 2d at 113. We submit that neither Ferayorni nor
the instant case is like Green.

We note that the Ferayorni opinion does not mention
an earlier Fourth District opinion, St. Cloud Utilities v. Moore, 355
So. 2d 446 (Fla. 4th DCA 1978), where it reached a contrary result when
considering Florida Rule of Appellate Procedure 3.15(a), the similarly-worded
predecessor to rule 9.340(c). In Moore, the Fourth District held that
the trial court erred in apportioning damages among the defendants based on each
defendant’s comparative fault and remanded for the trial court to enter
judgment against all defendants, jointly and severally. 355 So. 2d at 447. On
remand, the trial court entered the amended judgment pursuant to the mandate
and determined that pursuant to rule 3.15(a), the interest would accrue from
the date of the jury verdict. Id.

The Fourth District reversed, finding that rule 3.15(a) did
not apply, “because our previous reversal in this case did not require the
entry of a money judgment for the simple reason that one for the exact same sum
had already been entered and, in effect, only a modification of that existing
judgment was required.” Id. at 448. The court noted that although in its
first opinion it used the word “reversed” and mandated the entry of a “new
judgment,” the case was remanded only for entry of an amended money judgment to
replace the original money judgment. Id. at 447 n.1. Thus, Moore determined
that rule 3.15(a) was inapplicable and commented that employing the rule to
create an earlier starting date for the accrual of interest would unjustly
punish the defendants. Id. at 448.

The position urged by Appellee in the instant case would
likewise unjustly punish Appellant. We will apply the rule as written;
therefore, we decline to adopt an illogical, unjust interpretation of rule
9.340(c). We disagree with the Fourth District’s Ferayorni opinion, but
agree with its previous opinion in Moore.

Accordingly, we reverse the amended final judgment and
remand for entry of an amended money judgment that awards post-trial interest
from the date of the original judgment, rather than from the date of the
verdict.

REVERSED AND REMANDED. (EVANDER, J., and PLEUS, ROBERT J.,
JR., SENIOR JUDGE, concur.)

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