## F I FTH 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________ Case No. 5D23- 1515 LT Case No. 2020

- CA

- 000883

_____________________________ C AMERON A NDREW G ARROW and K ENNETH J OSEPH G ARROW , Appella nts,

v.

A NN M ARIE ANTONIETTA and J AMES ANTONIETTA , Appellees

.

_____________________________

On a ppeal from the Circuit Court for Seminole County. Dawn P. Field s, Judge.
Ezequiel Lugo, of Banker Lopez Gassler, P.A., Tampa, for Appellants.

Jeremy K. Markman, of King & Markman, P.A., Orlan do, for Appellees.

F ebruary 2, 2024

L AMBERT , J.

Cameron Garrow and Andrew Garrow, who wer e the defendants below in the negligence action filed against them by Appellees arising out of a motor vehicle accident , have timely appealed the trial court’s order granting a new trial following the2 Garrows’ rejection of an additur ordered by the court under section 768.043, Florida Statutes (2022). The new trial was limited solely to the claims of Appellee, Ann Mari e Antonietta, for past and future non

- economic damages and the claim of Appellee, James Antonietta, for future loss of consortium damages. We reverse and remand for reinstatement of the jury’s verdict and entry of judgment consistent with the verdict.

W e begin with the recognition that “ [d] amages for pain and suffering are difficult to calculate, have no set standard of measurement, a nd for this reason are uniquely reserved to a jury for their decision.” Pogue v. Garib , 254 So. 3d 503, 507 (Fla. 4 th DCA 2018) (quoting Ortega v. Belony , 185 So. 3d 538, 5 39

– 40 (Fla. 3d DCA 2015)). A tria l court does, however, have the limited authority to grant an additur in the type of action filed below , but only when, under the facts and circumstances presented to the trier of fact, the money damages awarded are clearly inadequate. See § 768.043(1), Fla. Stat. (2022).

The granting of an additur is reviewed for an abuse of discretion. Moore v. Perry , 944 So. 2d 1115, 1117 (Fla. 5th DCA 2006) (citing Republic Servs. of Fla., L.P. v. Poucher , 851 So. 2d 866 (Fla. 1st DCA 2003)) ; Ferrer v. Serna , 179 So. 3d 523, 524 (Fla. 4th DCA 2015) (citing Aurbach v. Gallina , 721 So. 2d 756, 758 (Fla. 4th DCA 1998)). D iscretion is considered to have been abused when the trial evidence is in conflict and the jury could have reached its verdict in a manner consistent with the evidence

. Moore , 944 So. 2d at 1118; Ferrer , 179 So. 3d at 525 (quoting Ortlieb v. Butts , 849 So. 2d 1165, 1167 (Fla. 4th DCA 2003 )) ; Ortlieb , 849 So. 2d at 1167 (“ [W] here the evidence is conflicting and the jury could have reached its verdict in a manner consistent with the evidence, it is error for the trial court to veto the jury verdict by granting a motion for additur. ” (citing Airstar, Inc. v. Gubbins , 668 So. 2d 311, 313 (Fla. 4th DCA 1996)) ).

W ithout the need for detailed elaboration of the confli cting evidence regarding these intangible damages at issue , the evidence presented to the jury was sufficiently conflicting such that it s verdict awarding Ann Marie Antonietta $20,000 for past

non- economic damages and $100,000 for future non -economic damages wa s entirely consistent with the evidence the jury3 received and evaluated at trial. Moreover, the jury’s verdict as to James Antoniett a’ s loss of future consortium damages was fully consistent with his express trial testimony. Accordingly, we agree with the Garrows that the trial court abused its discretion in granting the additur and in ordering the previously described new trial. 1
Appellee s have also moved for an award of appellate attorney’s fees . T he motion was filed after the time for service of the reply brief, and after Appellants had in fact filed their reply brief; and the motion is therefore denied as untimely. See Fla. R. App. P. 9.400(b)(1) ; Lobel v. Southgate Condo. Ass’n , 436 So. 2d 170, 171 (Fla. 4th DCA 1983).

R EVERSED and R EMANDED with directions to the trial court to reinstate the jury verdict and ente r a final judgment consistent with the verdict ; D ENY Appellees’ m otion for appellate attorney’s fees.

E DWARDS , C.J., and J AY , J., concur.

________ _____________________ Not fin al until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________

1 We also conclude that the other arguments raised by the Garrows in their initial brief either lack merit or have been rendered moot by our decision.