Third District Court of Appeal
State of Florida
Opinion filed March 22, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-0253
Lower Tribunal No. 17-29664
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Federal Express Corporation,
Petitioner,
vs.
Gadith Sabbah, etc., et al.,
Respondents.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Carlos Guzman, Judge.
Frank A. Shepherd, P.A., and Frank A. Shepherd; GrayRobinson, P.A.,
and Juan C. Martinez, and Veronica A. Meza; Wicker Smith O'Hara McCoy
& Ford, P.A., and Jacob J. Liro; Murray, Morin & Herman, P.A., and David
P. Herman, and Rollin M. Smith , for petitioner.
Leonard Feuer, P.A., and Leonard S. Feuer (West Palm Beach); Alton
C. Hale, Jr., P.A. and Alton C. Hale, Jr. (West Palm Beach), for respondent
Gadith Sabbah.
Before LINDSEY, HENDON, and GORDO, JJ.
LINDSEY, J.
Petitioner (Defendant below) Federal Express Corporation seeks
certiorari review or, in the alternative, an appeal from an order granting
Respondent (Plaintiff below) Gadith Sabbah’s motion for leave to amend to
assert punitive damages. For the reasons set forth below, we are compelled
to deny the Petition.
As an initial matter, we must determine whether this is a non-final
appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(G). In
January 2022, the Florida Supreme Court amended Rule 9.130(a)(3)(G) to
authorize interlocutory appeals from non-final orders granting or denying
leave to amend a complaint to assert a claim for punitive damages. In re
Amendment to Fla. R. App. P. 9.130,
345 So. 3d 725 (Fla. 2022).
“Previously, certiorari review was the sole avenue for determining whether
the procedural requirements of the statute governing the pleading of punitive
damages claims had been followed.” Cleveland Clinic Fla. Health Sys.
Nonprofit Corp. v. Oriolo for Estate of Sasso, 48 Fla. L. Weekly D203 n.1
(Fla. 4th DCA Jan. 25, 2023).1 Importantly, “[t]he amendment shall take
1
In Cleveland Clinic, the Fourth District reviewed a non-final order granting
leave to amend to assert punitive damages as a non-final appeal pursuant
to Rule 9.130(a)(3)(G). Under the appellate standard, the Fourth District
reviewed de novo whether the “plaintiff made a ‘reasonable showing’ under
section 768.72 to recover punitive damages.”
Id. The lower court docket
2
effect on April 1, 2022, at 12:01 a.m.”
Id. at 726. The order under review
was rendered on January 7, 2022, before the Rule’s effective date. On
February 7, 2022, Federal Express filed its Petition for Writ of Certiorari, also
before the effective date.
Because the standard and scope of review is potentially dispositive in
this case, we ordered supplemental briefing. Federal Express contends the
trial court’s order is an appealable, non-final order. Sabbah argues the order
should be reviewed under the certiorari standard. Both parties agree that
should this Court decide to review the order as an appealable, non-final
order, they should be permitted to file amended briefs. As set forth below,
controlling case law requires this Court to review the order under the
certiorari standard because the Petition was filed before the Rule’s effective
date.
This Court recently issued an opinion on a motion to dismiss involving
the effective date of Rule 9.130(a)(3)(G). See Vital Pharm., Inc. v. Kesten,
47 Fla. L. Weekly D1783 (Fla. 3d DCA Aug. 24, 2022). In Vital, the issue
was “whether the Court should look to the date of the order on appeal or date
the notice of appeal was filed when considering whether an appeal is
reflects that the notice of appeal in Cleveland Clinic was filed on May 20,
2022, after Rule 9.130(a)(3)(G)’s effective date.
3
governed by the amended rule 9.130.”
Id. at D1783. Vital cited a handful of
cases dealing with the effective date of newly amended rules of appellate
procedure. Generally, these cases hold that a newly amended rule does not
apply when the appellate proceeding is initiated before the effective date of
an amended rule.
Id. at D1784.
For example, in Sarasota County Public Hospital District v. Venice
HMA, LLC,
325 So. 3d 334 (Fla. 2d DCA 2021), the Second District declined
to review an order denying a motion asserting entitlement to sovereign
immunity as a non-final, appealable order pursuant to the recently amended
Rule 9.130(a)(3). The court determined it was “constrained to view the
County’s challenge through an extraordinary writ because the version of rule
9.130(a)(3) in effect when the circuit court entered the subject order and the
County filed its petition only authorized appeals of nonfinal orders that
determined ‘as a matter of law, a party is not entitled to sovereign immunity.’”
Id. at 339 n.4 (emphasis added). Similarly, in Christakis v. Tivoli Terrace,
LLC,
219 So. 3d 85 (Fla. 4th DCA 2017), the Fourth District held that an
amendment to Rule 9.020(i)(3), which required an appeal to be held in
abeyance if there was a pending motion for new trial, did not apply because
the notice of appeal was filed before the Rule’s effective date.
4
As further explained in Judge Logue’s concurring opinion in Vital,
Florida law firmly supports the premise that the commencement date of the
appellate proceeding determines whether the appellate proceeding is within
the effective date of a newly amended rule of appellate procedure.
Id. at
D1784-85 (Logue, J., concurring) (citing Foxcroft Bldg. Corp. v. Allied
Plastering Co.,
367 So. 2d 694, 694 (Fla. 4th DCA 1979) (“Because this
appeal was filed after March 1, 1978 the Florida Rules of Appellate
Procedure which became effective on that date are applicable.”); Fla. Power
Corp. v. Griffin,
150 So. 2d 270, 272 (Fla. 2d DCA 1963) (applying
amendment to old Florida Rule of Appellate Procedure 4.2(a) to appellate
proceeding filed after the effective date of the amendment); Fla. R. App. P.
9.010 (“These rules . . . shall take effect at 12:01 a.m. on March 1, 1978.
They shall govern all proceedings commenced on or after that date . . . .”);
Christakis,
219 So. 3d at 87 (declining to apply amendment to appellate rule
where notice of appeal was filed before the effective date); Wallen v. Tyson,
174 So. 3d 1058, 1060 (Fla. 5th DCA 2015) (declining to apply amendments
to Florida Rule of Appellate Procedure 9.020(i)(3) to case filed before
effective date); Strauser v. State,
360 So. 2d 113, 114 (Fla. 4th DCA 1978)
(declining to apply amendments to appellate rules where notice of appeal
was filed before the effective date); Thomas v. Cilbe, Inc.,
104 So. 2d 397,
5
399 (Fla. 2d DCA 1958) (“This appellate proceeding was brought prior to the
effective date, July 1, 1957, of section 26(6), Article V of the Constitution of
the State of Florida and of the Florida Appellate Rules effective under the
same date. This appeal, therefore, is governed by the rules theretofore in
effect.”)).
Thus, given the foregoing, we consider the instant Petition under the
certiorari standard because it was filed in this Court before Rule
9.130(a)(3)(G)’s effective date. We have certiorari jurisdiction to review an
order granting a motion to amend to assert punitive damages. See, e.g.,
Globe Newspaper Co. v. King,
658 So. 2d 518, 519 (Fla. 1995). However,
our review is limited to “whether a trial judge has conformed with the
procedural requirements of section 768.72[.]”
Id. We cannot “review a
determination that there is a reasonable showing by evidence in the record
or proffered by the claimant which would provide a reasonable basis for
recovery of such damages.”
Id.
Here, the trial court complied with the procedural requirements of the
statute. Therefore, based on the narrow standard and scope of certiorari
review, we must deny the Petition. 2
2
Our determination that Federal Express cannot appeal the trial court’s
interlocutory order pursuant to Rule 9.130(a)(3)(G) does not foreclose the
possibility of appellate review of the order upon entry of a final judgment.
6
Petition denied.
See Fla. R. App. P. 9.110(h); Saul v. Basse,
399 So. 2d 130, 133 (Fla. 2d
DCA 1981) (“[a]n appeal from a final order calls up for review all necessary
interlocutory steps leading to that final order, whether they were separately
appealable or not.”).
7
Federal Express Corporation v. Gadith Sabbah, etc., et al.
Case No. 3D22-0253
GORDO, J., concurring in result only.
I am compelled to concur in the majority’s conclusion to review the
order on appeal under the certiorari standard but write separately to express
my concern that our current Florida jurisprudence requires us to qualify the
plain language of rule amendments in a confusing and often unintelligible
manner.
In amending Florida Rule of Appellate Procedure 9.130 to authorize
appeals of nonfinal orders that grant or deny a motion for leave to amend to
assert a claim for punitive damages, the Florida Supreme Court indicated
“[t]he amendment shall take effect on April 1, 2022, at 12:01 a.m.” In re
Amend. to Fla. R. of App. Proc. 9.130,
345 So. 3d 725, 726 (Fla. 2022). The
term “effect” is defined as “to bring about” and “the quality or state of being
operative.” See Webster’s New Collegiate Dictionary 362 (1976). Thus,
under the plain and ordinary meaning of the word effect, the new rule
became operative on April 1, 2022. In my view, under its plain language, if
the rule is operative prior to our consideration of a matter which only confers
expanded jurisdiction it should apply here. “‘[S]hall take effect upon
enactment’ is presumed to mean ‘shall have prospective effect upon
enactment’ and that presumption is too strong to be overcome by any
8
negative inference derived” from conflicting jurisprudence. Landgraf v. USI
Film Products,
511 U.S. 244, 288 (1994) (Scalia, J., concurring).
The Florida jurisprudence we are bound to follow, however,
consistently qualifies the plain language of the rule amendment by trying to
determine whether the rule should be applied prospectively or retroactively
based on whether it is substantive or procedural in nature and then
separately takes into account the procedural posture of the case. 3 See
Mendez-Perez v. Perez-Perez,
656 So. 2d 458, 460 (Fla. 1995) (determining
whether an amendment to a Florida Rule of Civil Procedure 1.540(b) “should
be applied retroactively” based on the nature and “intended . . . purpose” of
the amendment and the procedural posture of the case); Natkow v. Natkow,
696 So. 2d 315, 316–17 (Fla. 1997) (same); Kocsis v. State,
467 So. 2d 384,
385 (Fla. 5th DCA 1985) (noting that the amendment to Florida Rule of
Criminal Procedure 3.390(a) “is procedural, and does not affect appellant’s
substantive rights”); Pellegrino By & Through Pellegrino v. Horwitz,
642 So.
2d 124, 126 (Fla. 4th DCA 1994) (declining to apply the newly amended
Florida Rule of Appellate Procedure 9.110(k) where “[t]he amendment
relates to timing of appeals and is not a substantive modification of the right
3
An inordinate amount of time, judicial resources and legal expenses are
incurred by parties litigating these issues every time there is a rule
amendment.
9
to appeal”); Smith v. Smith,
902 So. 2d 859, 863 (Fla. 1st DCA 2005)
(“Because the supreme court’s adoption of Family Law Rule 12.525 occurred
during the pendency of this appeal, and the rule is a procedural, rather than
a substantive, change in the law, it applies to this case.”). As our Florida
Supreme Court has recently acknowledged, “[we have] been unclear about
what it means to give retroactive application to procedural law.” Love v.
State,
286 So. 3d 177, 184 (Fla. 2019); see also Caple v. Tuttle’s Design-
Build, Inc.,
753 So. 2d 49, 53 (Fla. 2000) (“The distinction between
substantive and procedural law is neither simple nor certain.”).
Importantly, the Florida Supreme Court recently reinforced that “the
‘commonsense’ application of a new procedure generally ‘depends on the
posture of the particular case.’”
Id. at 187 (quoting Landgraf,
511 U.S. at 275
n.29). In interpreting this, our district courts have reviewed the posture of
the case by looking to the date the appeal was filed when considering
whether a new amendment should apply to a pending case. Generally,
district courts have not applied new rule amendments to cases that were filed
before the effective date of new amendment regardless of whether they
remained pending when the rule came into effect. See Sarasota Cnty. Pub.
Hosp. Dist. v. Venice HMA, LLC,
325 So. 3d 334, 339 n.4 (Fla. 2d DCA 2021)
(“We, however, are constrained to view the County’s challenge through an
10
extraordinary writ because the version of rule 9.130(a)(3) in effect when the
circuit court entered the subject order and the County filed its petition only
authorized appeals of nonfinal orders that determined ‘as a matter of law, a
party is not entitled to sovereign immunity.’”); Strauser v. State,
360 So. 2d
113, 114 (Fla. 4th DCA 1978) (declining to apply the new Florida Rules of
Appellate Procedure as the “petition was filed before the effective date of the
new appellate rules”); Christakis v. Tivoli Terrace, LLC,
219 So. 3d 85, 87
(Fla. 4th DCA 2017) (“We 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.”).
Petitioner cites us to Pearlstein v. King,
610 So. 2d 445, 446 (Fla.
1992), for the proposition that application of the amended rule in this case
constitutes a prospective application. A careful review of Pearlstein,
however, demonstrates the trial court order, the filing of the appeal and the
appellate court’s consideration of the matter all occurred after the
amendment took effect. 4 It therefore provides us no guidance in this matter.
4
The amendment’s effective date was January 1, 1989. See Pearlstein,
610
So. 2d at 446. The trial court order at issue was entered eleven months after
this effective date on December 28, 1990. Undoubtedly, the invocation of
the appellate court’s jurisdiction and consideration were well after the
amendment became operative.
11
Our Court recently issued Vital Pharm., Inc. v. Kesten, 47 Fla. L.
Weekly D1783 (Fla. 3d DCA Aug. 24, 2022), which both parties ask us to
apply to reach opposite conclusions. In Kesten the very limited issue
presented to us by the parties on appeal was whether rule 9.130(a)(3)(G)
applied where the filing of the notice of appeal occurred after the amendment
to the rule took effect. While our holding included the date of filing, much of
the analysis centered on Landgraf’s premise that present law should govern
when considering application of newly adopted rules conferring jurisdiction
“because jurisdictional statutes ‘speak to the power of the court rather than
to the rights or obligations of the parties.’” Landgraf,
511 U.S. at 274 (quoting
Republic Nat’l Bank of Miami v. United States,
506 U.S. 80, 100 (1992)
(Thomas, J., concurring)); see also Landgraf,
511 U.S. 244 at 293 (Scalia,
J., concurring) (“[T]he purpose of provisions conferring or eliminating
jurisdiction is to permit or forbid the exercise of judicial power.”); United
States v. State of Ala.,
362 U.S. 602, 604 (1960) (“Under familiar principles,
the case must be decided on the basis of law now controlling.”). Therefore,
while the date of filing was salient in Kesten, it does not necessarily govern
all future application of rule amendments.
Federal Express argues that since this Court “has already held that the
appropriate method to review at least some orders rendered in the past that
12
have granted or denied a motion to amend a complaint to add a punitive
damage claim that are presently pending in this Court is to review them as
non-final orders under to Rule 9.130(a)(3)(G),” there is “no principled reason”
why the Court should not do so in this case. Given the plain language of the
rule amendment, I would agree if not restrained to follow the current Florida
jurisprudence. The bulk of our jurisprudence discusses the absence of the
Florida Supreme Court’s language that the rule amendment should apply to
pending cases on or after the rule’s effective date. See Betts v. Ace Cash
Express, Inc.,
863 So. 2d 1252, 1254 (Fla. 5th DCA 2004) (noting that when
the Florida Supreme Court “chooses to apply a rule to pending cases, it
clearly indicates that intention”); Johnson v. Precision Motorcars, Inc.,
970
So. 2d 493, 494 (Fla. 2d DCA 2007) (declining to apply a new amendment
“[b]ecause nothing in the supreme court’s decision adopting the new
guidelines indicates that the supreme court intended that the new guidelines
be imposed retroactively”); Natkow,
696 So. 2d at 317 (declining to apply a
new rule amendment to a pending case because the amendment did not
include “language creating such a retroactive window period”). That logic
seems flawed where the plain language of the rule amendment states it “shall
take effect” on a specific date. To me, the exclusion of any qualifying words
to this language ought to mean the rule applies to all cases filed on, after or
13
currently pending on the rule’s effective date.5 As demonstrated by this case,
predictability in application of newly amended rules and statutes remains
elusive—if not imprecise under our current precedent. As I am
constitutionally bound to follow it, however, I join my colleagues in concurring
to review the order on appeal under the certiorari standard.
5
I recognize that there are times the Florida Supreme Court does not want
to give more specific guidance in the rule so as to not foreclose legal
challenges effecting its application.
14
