FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-1515

LT Case No. 2020-CA-000883

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CAMERON ANDREW GARROW and

KENNETH JOSEPH GARROW, 

Appellants, 

v.

ANN MARIE ANTONIETTA and

JAMES ANTONIETTA, 

Appellees. 

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On appeal from the Circuit Court for Seminole County. 

Dawn P. Fields, Judge. 

Ezequiel Lugo, of Banker Lopez Gassler, P.A., Tampa, for 

Appellants. 

Jeremy K. Markman, of King & Markman, P.A., Orlando, for 

Appellees. 

February 2, 2024

LAMBERT, J.

Cameron Garrow and Andrew Garrow, who were 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 the 
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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 Marie 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. 

We begin with the recognition that “[d]amages for pain and 

suffering are difficult to calculate, have no set standard of 

measurement, and for this reason are uniquely reserved to a jury 

for their decision.” Pogue v. Garib, 254 So. 3d 503, 507 (Fla. 4th

DCA 2018) (quoting Ortega v. Belony, 185 So. 3d 538, 539–40 (Fla. 

3d DCA 2015)). A trial 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)). Discretion 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))). 

Without the need for detailed elaboration of the conflicting 

evidence regarding these intangible damages at issue, the 

evidence presented to the jury was sufficiently conflicting such

that its verdict awarding Ann Marie Antonietta $20,000 for past 

non-economic damages and $100,000 for future non-economic 

damages was entirely consistent with the evidence the jury
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received and evaluated at trial. Moreover, the jury’s verdict as to

James Antonietta’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 

Appellees have also moved for an award of appellate 

attorney’s fees. The 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). 

REVERSED and REMANDED with directions to the trial court to 

reinstate the jury verdict and enter a final judgment consistent 

with the verdict; DENY Appellees’ motion for appellate attorney’s 

fees.

EDWARDS, C.J., and JAY, J., concur. 

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331. 

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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.