STAMATIA C. BICKFORD AND ROY W. BICKFORD, APPELLANTS,
v.
ARLENE R. WALL AND CLARENCE WALL, HER HUSBAND, APPELLEES
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The Bickfords appealed a trial judge's decision to set aside their jury verdict and grant a new trial based on the judge's failure to instruct the jury on a statutory provision. The appellate court affirmed, holding that the trial judge had jurisdiction to grant the new trial on his own motion and that the failure to object did not waive the judge's authority to do so.
The trial judge had jurisdiction to grant a new trial pursuant to Florida Rule of Civil Procedure 1.530(d). The failure to object did not waive the trial judge's authority to grant a new trial, and the appellees' merely calling the court's attention to the oversight was sufficient to preserve the issue. The trial judge had a reasonable ground to find that the instructional error could have affected the jury's verdict.
[1] A trial court has jurisdiction to order a new trial on its own initiative within ten days after entry of judgment or while ruling on a timely motion for rehearing or new…
[2] A trial judge's authority to grant a new trial for failure to instruct the jury properly is not limited to instructions to which an objection was made.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court had jurisdiction pursuant to Florida Rule of Civil Procedure 1.530(d)”
Establishes the trial court's authority to grant a new trial on its own motion
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Join FLexlaw to unlock all legal intelligenceA jury verdict was rendered in favor of the Bickfords in a trial. After the verdict, the trial judge sua sponte realized he had inadvertently failed t…
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PEARSON, Judge.
Appellants Stamatia C. Bickford and Roy Bickford, defendants in the trial court, received a jury verdict which was set aside by the trial judge who, on his own motion, awarded the plaintiffs a new trial on the grounds that the court had inadvertently failed to charge the jury on Section 627.-737(2)(e), Florida Statutes (1977).
On this appeal, it is first urged that the trial court lacked jurisdiction to enter the order. We hold that the trial court had jurisdiction pursuant to Florida Rule of Civil Procedure 1.530(d).1
It is next urged that it was error for the trial judge to grant a new trial on the ground of his failure to give a portion of an instruction that he had previously indicated he would give, where the plaintiff failed to object at trial, thereby waiving the error. In Shank v. Fassoulas, 304 So. 2d 469 (Fla. 3d DCA 1974), we pointed out that the authority of the trial judge to grant a new trial because of his failure properly to instruct the jury is not limited to instructions which are objected to. Further, we are unable to construe the appellees’ failure to do more than call the court’s attention to its oversight, at the time the instruction was given, as a waiver of the trial judge’s authority to grant a new trial upon his finding that the error may have caused confusion or oversight by the jury.
We must also consider whether, under the circumstances of this case, the trial judge had a reasonable ground to find that the error in instructions could have affected the jury’s verdict. This is, of course, an area where the trial judge is at the scene and his determination in the matter is entitled to the greatest weight. See Mills v. Redwing Carriers, Inc., 127 So. 2d 453 (Fla. 2d DCA 1961).
Our examination of the record convinces us that the evidence supported the giving of the charge.
Affirmed.
. “(d) On Initiative of Court. Not later than ten days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.”
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Sears Roebuck & Co. v. Arlee Jackson and Mugge Rivers, 433 So. 2d 1319 (Fla. 3d DCA 1983)…al, obviating the necessity for preservation, see, e.g., Easton v. Bradford, 390 So. 2d 1202 (Fla. 2d DCA 1980), rev. dismissed, 399 So. 2d 1141 (Fla. 1981); Southwestern Insurance Co. v. Stanton, 390 So. 2d 417 (Fla. 3d DCA 1980); Bickford v. Wall, 371 So. 2d 172 (Fla. 3d DCA 1979), cert. denied, 381 So. 2d 764 (Fla.1980). Thus, in Shank v. Fassoulas, the jury found the defendant negligent, but awarded no damages to the six-year-old plaintiff who was struck by the defendant’s car. The plaintiff’s motion for…1 / 3
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Sw. Ins. Co. v. Stanton, 390 So. 2d 417 (Fla. 3d DCA 1980)…Other points on appeal and cross-appeal have been considered and found to be without merit. Baptist Memorial Hospital, Inc. v. Bell, 384 So. 2d 145 (Fla.1980); Castlewood International Corp. v. LaFleur, 322 So. 2d 520 (Fla.1975); Bickford v. Wall, 371 So. 2d 172 (Fla. 3d DCA 1979), cert. denied 381 So. 2d 764 (Fla.1980). Accordingly, the order granting plaintiffs’ Motion for New Trial is affirmed with directions that the new trial be limited to the issue of damages and that the total damages found on the s…
Authorities Cited
- Mills v. Redwing Carriers, Inc., 127 So. 2d 453 (Fla. 2d DCA 1961)
- Shank v. Konstantinos Ioannis Fassoulas, 304 So. 2d 469 (Fla. 3d DCA 1974)