IN THE DISTRICT COURT OF APPEAL OF FLORIDA FOURTH DISTRICT CASE NO. 4D

IN THE DISTRICT COURT OF APPEAL OF FLORIDA FOURTH DISTRICT CASE NO. 4D17-2716 RECEIVED, 6/11/2018 12:06 PM, Clerk, Fourth District Court of Appeal ROB ALEXANDER, M.D., ANESCO NORTH BROWARD, LLC and EDWARD PUNZALAN, CRNA, Appellants, vs. SUSAN KALITAN, Appellee. APPEAL FROM THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. 08-29706 (19) QUINTAIROS, PRIETO, WOOD & BOYER, P.A. One East Broward Boulevard, Suite 1400 Fort Lauderdale, FL 33301 Telephone: (954) 523-7008 Facsimile: (954) 523-7009 Counsel for Appellants REPLY BRIEF OF APPELLANTS HICKS, PORTER, EBENFELD & STEIN, P.A. 799 Brickell Plaza, Suite 900 Miami, FL 33129 Telephone: (305) 374-8171 Facsimile: (305) 372-8038 Appellate Counsel for Appellants

TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... i ARGUMENT... 1 I. THE TRIAL COURT'S INTEREST RULING ON REMAND WAS LEGALLY IMPROPER AND UNCONSTITUTIONAL..1 A. Rule 9.340(c) has no applicability on its face... 1 B. Ferayorni and McGee are highly distinguishable.7 C. Kalitan's other arguments are meritless 8 CONCLUSION... 12 CERTIFICATE OF SERVICE... 13 CERTIFICATE OF COMPLIANCE... 14 i

TABLE OF AUTHORITIES PAGE Cases Allstate Ins. Co. v. Rush, 777 So. 2d 1027 (Fla. 4th DCA 2000)...3, 5 Amerace Corp. v. Stallings, 823 So. 2d 110 (Fla. 2002)... 8, 10, 11 Bogorff v. Florida Dep't of Agric. & Consumer Servs., 191 So. 3d 512 (Fla. 4th DCA 2016)... 5 Boyd v. Becker, 627 So. 2d 481 (Fla. 1993)... 6 Casserly v. City of Delray Beach, 228 So. 3d 135 (Fla. 4th DCA 2017)...2, 5 Donoff v. Donoff, 981 So. 2d 1290 (Fla. 4th DCA 2008)... 4, 12 Dow Corning Corp. v. Garner, 452 So. 2d 1 (Fla. 4th DCA 1984)... 3 Ford Motor Co. v. Jimenez, 870 So. 2d 831 (Fla. 3d DCA 2003)... 11 Friedman v. Olsen, 805 So. 2d 978 (Fla. 2d DCA 2001)... 4, 12 General Motors Corp. v. McGee, 867 So. 2d 1244 (Fla. 4th DCA 2004)... 4, 5, 7 Green v. Rety, 616 So. 2d 433 (Fla. 1993)... 8, 9, 11 Hyundai Motor Co. v. Ferayorni, 876 So. 2d 680 (Fla. 4th DCA 2004)... passim ii

Maestas v. State, 76 So. 3d 991 (Fla. 4th DCA 2011)... 5 Milton v. Keith, 503 So. 2d 1312 (Fla. 3d DCA 1987)... 3 N. Broward Hosp. Dist. v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015)...2, 5 National Education Centers, Inc. v. Kirkland, 678 So. 2d 1304 (Fla. 4th DCA 1996)... 3, 12 R.J. Reynolds Tobacco Co. v. Evers, 232 So. 3d 457 (Fla. 2d DCA 2017)... 2 Shoemaker v. Sliger, 187 So. 3d 863 (Fla. 5th DCA 2016)... 2, 5, 7 Sliger v. Shoemaker, 2016 WL 6801102 (Fla. Nov. 16, 2016)... 8 Sloane v. Sloane, 625 So.2d 1236 (Fla. 4th DCA 1993)... 3 Smith v. Goodpasture, 189 So. 2d 265 (Fla. 4th DCA 1966)... 10 St. Cloud Utils. v. Moore, 355 So. 2d 446 (Fla. 4th DCA 1978)... 2, 9, 10, 11 Townsend v. R.J. Reynolds Tobacco Co., 192 So. 3d 1223 (Fla. 2016)...6, 7 Rules Rule 3.15, Fla. R. App. P.... 10 Rule 9.340, Fla. R. App. P.... passim iii

Statutes 55.03, Fla. Stat....6, 7 766.118, Fla. Stat....9 iv

ARGUMENT I. THE TRIAL COURT'S INTEREST RULING ON REMAND WAS LEGALLY IMPROPER AND UNCONSTITUTIONAL. The arguments in the Answer Brief of Plaintiff/Appellee, Susan Kalitan, have already been largely addressed and rebutted in the Anesthesiologists' Initial Brief. In summary, the trial court's actions on remand of vacating the "4.75 percent interest from date of judgment" provision in the Final Judgment affirmed in relevant part in the prior appeal, and replacing it with a "6 percent from the date of verdict" provision in the Amended Final Judgment, was legally improper, unconstitutional, and based on flawed reading of Rule 9.340(c) of the Florida Rules of Appellate Procedure. 1 Post-judgment interest on Kalitan's modified damage award accrued on the date of the original Final Judgment. A. Rule 9.340(c) has no applicability on its face. Kalitan contends that Rule 9.340(c) must be "construed in accordance with the principles of statutory construction" and that, pursuant to its "clear and unambiguous" terms, Rule 9.340(c) applied and required the trial court on remand to award interest from the date of the verdict. (AB:6, 8-9). Kalitan is mistaken. By its plain terms, Rule 9.340(c) has no application to the facts of this case. This Court's prior mandate in Kalitan did not "requir[e] the entry of a money 1 The jury reached its verdict on June 16, 2011 not June 17, 2011 as asserted by Kalitan on appeal. (R.140-42; AB:2, 4). 1

judgment" for the simple reason that a money judgment in Kalitan's favor had already been entered and, except for the noneconomic damage component, was expressly affirmed on appeal. The mandate merely required that the existing judgment be "correct[ed]" by solely modifying the amount of the noneconomic damage award. See N. Broward Hosp. Dist. v. Kalitan, 174 So. 3d 403, 414 (Fla. 4th DCA 2015) ("As no challenge was raised as to liability in any other context nor was a challenge raised regarding Plaintiff's economic damages award, those portions of the final judgment are affirmed."); St. Cloud Utils. v. Moore, 355 So. 2d 446, 447-48 (Fla. 4th DCA 1978) ("The required mandate from this court was but a modification of an existing money judgment"); see also R.J. Reynolds Tobacco Co. v. Evers, 232 So. 3d 457, 466 (Fla. 2d DCA 2017) ("Where a party appeals a final judgment and only the amount of the award is modified after the appeal, the accrual date for interest does not change and the interest accrues from the date of the original judgment as modified."); Shoemaker v. Sliger, 187 So. 3d 863, 865 (Fla. 5th DCA 2016) ("[Rule 9.340(c)] does not apply, where the mandate requires entry of an amended final judgment that only changes the amount of the monetary award"), review denied, 2016 WL 6801102 (Fla. Nov. 16, 2016). Kalitan not only disregards the plain language of Rule 9.340(c), but that her interpretation would lead to absurd results. See, e.g., Casserly v. City of Delray Beach, 228 So. 3d 135, 138 (Fla. 4th DCA 2017) ("courts should avoid a statutory 2

interpretation which leads to an absurd result"); Allstate Ins. Co. v. Rush, 777 So. 2d 1027, 1032 (Fla. 4th DCA 2000) ("statutes must be construed as to avoid an unreasonable or absurd result"). Kalitan's interpretation of Rule 9.340(c) must be rejected on several grounds. First, in cases such as this where the appellate court in the prior appeal did not reverse the final judgment's interest provision awarding interest from the date of the final judgment, Rule 9.340(c) cannot possibly be interpreted as requiring the trial court to disregard the appellate mandate and vacate a provision in the final judgment that has been expressly or implicitly affirmed. (IB:37-38; R.160). As this Court stated in National Education Centers, Inc. v. Kirkland, 678 So. 2d 1304 (Fla. 4th DCA 1996), in holding that the trial court was powerless on remand to modify an interest award that was affirmed on appeal even if it was not discussed in the appellate opinion: We agree with appellant's argument that the trial court lacked authority to modify the original [] interest award. "[O]nce an appellate court affirms an order, judgment or decree, the trial court loses all authority to change, modify, nullify or evade that order, judgment or decree." Milton v. Keith, 503 So.2d 1312, 1313 (Fla. 3d DCA 1987); see also Dow Corning Corp. v. Garner, 452 So.2d 1 (Fla. 4th DCA 1984). "The fact that we did not discuss one of the issues does not mean we did not affirm that issue." Sloane v. Sloane, 625 So.2d 1236, 1237 (Fla. 4th DCA 1993). Kirkland, 678 So. 2d at 1305-06. 3

Rule 9.340(c) cannot be used by a trial court on remand to nullify an interest provision which was not vacated on appeal. (IB:37). See Friedman v. Olsen, 805 So. 2d 978, 980 (Fla. 2d DCA 2001) (trial court on remand lacked authority to modify original interest accrual date where appellate opinion had stated that "[i]n all other respects the final judgment is affirmed"); see also, e.g., Donoff v. Donoff, 981 So. 2d 1290, 1291-92 (Fla. 4th DCA 2008) ("the trial court had limited jurisdiction to amend the final judgment on remand, and it exceeded its jurisdiction"). Significantly, while Hyundai Motor Co. v. Ferayorni, 876 So. 2d 680 (Fla. 4th DCA 2004) and General Motors Corp. v. McGee, 867 So. 2d 1244 (Fla. 4th DCA 2004) are distinguishable in other material respects, there is no indication the original judgments in those cases contained a similar "date of judgment" interest provision. Furthermore, the original judgment in Ferayorni was not even appealed from in the first appeal. Rather, the plaintiff in Ferayorni "appealed from an order granting a new trial on damages" and the interest accrual issue was addressed by the trial court for the first time on remand. 876 So. 2d at 681-82. In McGee, the interest accrual issue was likewise addressed for the first time on remand and the trial court never even determined what interest rate percentage was applicable. 867 So. 2d at 1245 & n.2. 4

Here, in contrast to Ferayorni and McGee, the original final judgment awarded interest from the date of the judgment, and rejected the date of the verdict, and that provision was effectively affirmed by this Court in the prior appeal. (A.160, 288). See Kalitan, 174 So. 3d at 414 ("those portions of the final judgment are affirmed"). Rule 9.340(c) cannot nullify an appellate mandate. Second, under Kalitan's interpretation of Rule 9.340(c), a defendant/appellant could be entirely successful on appeal and have the appellate court reduce an excessive compensatory damage award in a final money judgment yet on remand the defendant could ultimately lose more than he won because the trial court would be required to vacate any accompanying "date of judgment" interest award in the final judgment and replace with a greater "date of verdict" interest award. Respectfully, Kalitan's interpretation is patently "illogical and unjust" and must be rejected as leading to absurd results. See Shoemaker, 187 So. 3d at 867; see also Casserly, 228 So. 3d at 138; Rush, 777 So. 2d at 1032. Further, Kalitan's "statutory construction" arguments disregard that Rule 9.340(c) must be interpreted "to effect a constitutional outcome." See Bogorff v. Florida Dep't of Agric. & Consumer Servs., 191 So. 3d 512, 514-15 (Fla. 4th DCA 2016); see also, e.g., Maestas v. State, 76 So. 3d 991, 994 (Fla. 4th DCA 2011) ("Courts are obligated to construe statutes in a manner which avoids an unconstitutional interpretation."). 5

Rule 9.340(c) is a rule of procedure, not substance, and only the Florida Legislature can regulate post-judgment interest which was not available at common law. (IB:14-15). See Townsend v. R.J. Reynolds Tobacco Co., 192 So. 3d 1223, 1231 (Fla. 2016) ("post-judgment interest is a matter of legislative grace"); Boyd v. Becker, 627 So. 2d 481, 484 (Fla. 1993) (statutes providing substantive rights "supersede our procedural rules"). When, as here, a money judgment awarding post-judgment interest pursuant to 55.03, Fla. Stat., is entered, appealed from, and affirmed in relevant part with limited directions to correct the judgment by modifying the compensatory damage award, it would be patently unconstitutional to permit a trial court on remand to utilize Rule 9.340(c) to impose a greater substantive liability for interest on the defendants by backdating the corrected judgment to the date of the verdict. Moreover, the version of 55.03 in effect at the time of the entry on November 28, 2011 of the original final money judgment against the Anesthesiologists required application of a variable interest rate which was set at 4.75% at the time. (IB:3-4). Contrary to Kalitan's argument, the Anesthesiologists clearly obtained a vested right to the application of the amended 2011 version of 55.03 and the trial court's attempt to divest the Anesthesiologists of that substantive right by backdating the judgment to the date of the verdict and applying a greater interest rate was unconstitutional. (IB:34-35; AB:21-22). See 6

Townsend, 192 So. 3d at 1230 (version of 55.03 at time of entry of original final judgment controls and the subsequent amendment of judgment relates back to date of original judgment and cannot interfere with constitutionally vested right to application of that statute). B. Ferayorni and McGee are highly distinguishable. Kalitan's continued reliance on Ferayorni and McGee is completely misplaced. As thoroughly detailed in the Initial Brief, the defendants in Ferayorni and McGee never argued that interest accrued from the date of the original judgment and this Court merely rejected the patently erroneous arguments of the defendants therein that a different date controlled. (IB:28-34). Notwithstanding this material distinction as well as the others described above, Kalitan argues Ferayorni and McGee are "procedurally identical" and that the trial court was "bound" by the decisions. (AB:8). Kalitan is wrong. The decisions in Ferayorni and McGee were based on the unique facts and arguments in those cases and did not address the issues and dispute between Kalitan and the Anesthesiologists in this case. Further, Ferayorni does not conflict with the Fifth District's decision in Sliger for all the reasons successfully advanced in the defendants' jurisdictional brief to the Supreme Court. (IB:33; R.111-29). The Supreme Court's denial of review in Sliger strongly indicates there is no inter-district conflict on the issue. 7

(AB:19-20). See Sliger v. Shoemaker, 2016 WL 6801102 (Fla. Nov. 16, 2016). Sliger is on point and should be followed by this Court. (IB:19-21). C. Kalitan's other arguments are meritless. Kalitan's heavy reliance on Justice Grimes' statement in his concurring opinion in Green v. Rety, 616 So. 2d 433 (Fla. 1993) that the "spirit" of Rule 9.340(c) is "to permi[t] the plaintiff to recover interest from the date of the verdict on the money he was entitled to recover in the first place" is totally misplaced. (AB:6, 14-15). Id. at 435. In Green, the trial court expressly "withheld judgment" and thus after appellate remand the trial court in calculating interest had to choose between the date of the verdict and the date of a final judgment entered many years later for the first time after the appeal process. Id. at 434-35. Rule 9.340(c) properly applied in Green given that no interest-bearing judgment had been entered prior to the appeal. (IB:16, 22). See Amerace Corp. v. Stallings, 823 So. 2d 110, 113 (Fla. 2002) ("The controversy in Green arose because the trial court originally withheld judgment."). Here, the trial court entered judgment on November 28, 2011, and ruled that interest ran from the date of the judgment, and Kalitan never took issue with that ruling in the prior appeal. Green is wholly inapposite. Kalitan's reliance on the additional statement in Green that Rule 9.340(c) "does not require that the trial court must have entered judgment in the original proceedings, but only that a verdict must have been returned" is equally misplaced. 8

(AB:15). See Green, 616 So. 2d at 435. This statement fully supports the Anesthesiologists' position, not Kalitan's. When the trial court has entered a money judgment, and the judgment is partially affirmed on appeal and only the amount is modified, Rule 9.340(c) does not apply. See Moore, 355 So. 2d at 448. Kalitan's argument that she should not be punished because of the time it took to challenge the constitutionality of 766.118, Fla. Stat., is likewise fatally flawed. (AB:11-12). First, in the prior appeal challenging 766.118, Kalitan never took issue with the trial court's ruling rejecting her claimed right to interest from the date of the verdict. (R.288). Second, "post-verdict prejudgment interest" is simply not recoverable under Florida law. (IB:13-14). And third, the original final judgment awarded Kalitan interest from the date of the judgment and not from any subsequent date when this Court or the Supreme Court found 766.118 unconstitutional. (R.160). The time it took for Kalitan to succeed on appeal has no bearing whatsoever since interest is pegged to the date of the original final judgment which was affirmed in relevant part in the prior appeal. Kalitan's contention that she could not have moved for entry of a judgment immediately after the verdict is equally meritless. (AB:13, 18-19). Nothing precluded Kalitan from moving and securing a judgment in a more expeditious 9

manner. (IB:32, 39). 2 Kalitan alone bears responsibility for waiting until threeand-a-half months after the jury verdict to move for entry of judgment. Moreover, under the reasoning of Moore, even "if the trial judge had originally correctly [found 766.118 unconstitutional], interest would most certainly only have commenced to accrue upon the entry of the original final judgment. It would be no less just to now punish the appellant for the judge's error." See Moore, 355 So. 2d at 448. Kalitan's attempt to distinguish Moore on the basis that the appellate mandate therein only resulted in a reapportionment of liability among defendants which was "an issue of law, not the jury's findings," is also unavailing. (AB:16-17). In finding former Appellate Rule 3.15(a) inapplicable because the prior appellate mandate merely resulted in "a modification of an existing money judgment," this Court expressly adopted the explanation found in Smith v. Goodpasture, 189 So. 2d 265 (Fla. 4th DCA 1966) that where a mandate "amount[s] to a reversal only in respect to the amount of the award and amounts to an affirmance in all other respects," interest is allowed on the modified judgment 2 See Amerace, 823 So. 2d at 115 (Pariente, J., dissenting) ("the effect of the majority's decision is to require plaintiffs to rush to seek entry of a judgment immediately after a verdict and to require the trial court to allow the entry of the judgment, knowing full well that the judgment amount may be adjusted based on the various postverdict matters"). 10

"from the date of original date of the judgment." See Moore, 355 So. 2d at 447 n.1. (IB:18-19). Moore is controlling and binding on this Court. Kalitan's discussion of Amerace is likewise flawed. (AB:17-19). Amerace is not a case involving the disputed application of Rule 9.340(c). Rather, Amerace holds that plaintiffs in Florida are not entitled to "post-verdict prejudgment interest," and has been followed by appellate courts thereafter. See, e.g., Ford Motor Co. v. Jimenez, 870 So. 2d 831, 832 (Fla. 3d DCA 2003) ("As we read Amerace, it establishes a black letter rule that interest is not awardable prior to the entry of judgment."). This Court's discussion of both Amerace and Green in Ferayorni was made in an entirely different factual scenario and context where, among other things, the defendant did not argue that interest accrued from the date of the original final judgment. The defendant's argument in Ferayorni that interest first accrued upon entry of a new judgment some four years later after the appellate process was patently erroneous and properly rejected by this Court. 876 So. 2d at 681-82. Finally, Kalitan's arguments against application of "waiver" principles are baseless. (AB:22-23). As detailed above, no rule of appellate procedure allows a trial court on remand to nullify or disregard an appellate mandate. In the prior appeal, Kalitan failed to challenge the final judgment's interest provision in any way and this Court affirmed that provision. Kalitan has failed to cite any case 11

allowing a trial court to use Rule 9.340(c) to make an end-run around the Court's mandate. The trial court clearly exceeded its limited jurisdiction on remand to correct the final judgment by reinstating the total noneconomic damage award. See Kalitan, 174 So. 2d at 413-14. The mandate did not allow the trial court to vacate the "4.75 percent interest from date of judgment" provision and replace it with a "6 percent from the date of verdict" provision. See Kirkland, 678 So. 2d at 1305-06; see also Donoff, 981 So. 2d at 1291-92; Friedman, 805 So. 2d at 980. CONCLUSION WHEREFORE, Appellants, ROB ALEXANDER, M.D., ANESCO NORTH BROWARD, LLC and EDWARD PUNZALAN, CRNA, respectfully request that this Court reverse the Amended Final Judgment and remand with directions to modify the Amended Final Judgment such that interest accrues from the date of the original Final Judgment, November 28, 2011, in accordance with the statute and rates in effect at that time. Respectfully submitted, BY: /s/dinah Stein MARK HICKS Fla. Bar No. 142436 DINAH STEIN Fla. Bar No. 98272 HICKS, PORTER, EBENFELD & STEIN, P.A. 799 Brickell Plaza, Suite 900 Miami, FL 33129 Phone: (305) 374-8171 12

Fax: (305) 372-8038 mhicks@mhickslaw.com dstein@mhickslaw.com eclerk@mhickslaw.com Appellate Counsel for Appellants Rob Alexander, M.D. Edward Punzalan, CRNA and ANESCO North Broward, LLC -and- Robert J. Cousins, Esq. Scott C. Sankey, Esq. QUINTAIROS, PRIETO, WOOD & BOYER, P.A. One East Broward Boulevard Suite 1400 Fort Lauderdale, FL 33301 Telephone: (954) 523-7008 Facsimile: (954) 523-7009 Rcousins@qpwblaw.com ssankey@qpwblaw.com Counsel for Appellants Rob Alexander, M.D. Edward Punzalan, CRNA and ANESCO North Broward, LLC CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on June 11, 2018, a true and correct copy of the foregoing has been filed with the Court's E-Portal and served via email to: Jonathan Gdanski, Esq., Sheldon J. Schlesinger, P. A., 1212 S. E. Third Avenue, Fort Lauderdale, FL 33316, jonathan@schlesingerlawoffices.com, bendja@schlesingerlaw.com, Counsel for Appellee, and Philip M. Burlington, Esq., Nichole J. Segal, Esq., Burlington & Rockenbach, P.A., Courthouse Commons/Suite #430, 444 West Railroad Avenue, West Palm Beach, FL 33401, 13

pmb@flappellatelaw.com, njs@flaappellatelaw.com; kbt@flappellatelaw.com, Appellate Counsel for Appellee. BY: /s/dinah Stein DINAH STEIN Fla. Bar No. 98272 CERTIFICATE OF COMPLIANCE This brief complies with the font requirements of Rule 9.210. It is typed in Times New Roman 14-point type. BY: /s/dinah Stein DINAH STEIN Fla. Bar No. 98272 14