final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No.
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.
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.
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
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).
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
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).
January 1, 2015 amendment to Rule 9.020(i)(3) does not have
retroactive effect to revive a motion previously abandoned
through the filing ...