ROWLAND HILL, ETC., APPELLANT,
v.
AMERICAN MEDICAL AFFILIATES, INC., ETC., ET AL., APPELLEES

Fla. 2d DCA | 1980-09-17
No. 79-1124
HOBSON, Acting C. J., and GRIMES, J., concur.
387 So. 2d 1056 Florida District Court of Appeal, Second District (1980) Caution
Cited by 7 cases

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Holding

A party cannot appeal an order granting a new trial to seek review of prior adverse rulings unless they claim error in granting the new trial itself.


Headnotes

[1] A party aggrieved by an order granting a new trial may appeal that order without waiting for a final judgment.

[2] An order granting a new trial may not be used as a vehicle to appeal prior rulings adverse to the losing party unless the party claims it was error to grant the new trial…

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Facts & Procedural History

Appellant sued for wrongful death, received compensatory damages but no punitive damages due to a directed verdict. The trial court granted a new tria…

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Opinion of the Court
DANAHY, Judge.

DANAHY, Judge.

ON MOTION TO DISMISS

We hold that the losing party may not appeal an order granting a new trial unless that party claims that it was error to grant a new trial on any issue. Where, as in the case before us, such error is not asserted, the order granting a new trial may not serve as the vehicle for review by this court of prior rulings by the trial judge adverse to that party.

Appellant brought this suit for wrongful death seeking both compensatory and punitive damages. At the close of appellant’s case, the trial judge ruled that the evidence did not warrant submission of the issue of punitive damages to the jury.1 The jury awarded compensatory damages to appellant in the amount of $55,000.

All parties filed motions for new trial, appellees requesting a new trial on compensatory damages and liability, and appellant on the issue of punitive damages. The trial judge entered an order granting a new trial on the issue of compensatory damages only and appellant assails that order for its failure to grant a new trial on the issue of punitive damages as well.

A party “aggrieved” by an order granting a new trial may bring an appeal from that order without waiting for final judgment. § 59.04, Fla.Stat. (1979), incorporated in Fla.R.App.P. 9.130(a)(4). Appellant’s rationale is that he is aggrieved by the order granting a new trial solely on the issue of compensatory damages in the same sense that he would be aggrieved by a final judgment awarding compensatory damages but not punitive damages. We agree with appellees that appellant’s challenge is a masquerade for what is in fact an imper missible appeal from an order denying a new trial2 in which this court is asked to review the propriety of the directed verdict in appellees’ favor on the issue of punitive damages. That review may be sought only on appeal from a final judgment,3 which has not been entered in this case and cannot be entered until the issue of compensatory damages is determined. Accordingly, we grant appellees’ renewed motion to dismiss.4

In support of his position, appellant relies on Bowen v. Willard, 340 So. 2d 110 (Fla. 1976), for the proposition that the question of a directed verdict may be addressed on appeal from an order granting a new trial. In that case the supreme court held that appeals taken from new trial orders shall be treated as appeals from final judgments to the extent possible, and that the appellate courts of this state have the authority on such an appeal to deal with other appealable issues.5 Appellant’s reliance on Bowen is misplaced; the supreme court in that case did not hold that an order granting a new trial is to be equated to a final judgment for purposes of determining its appealability. The court simply pointed out that when a party aggrieved by an order granting a new trial brings an appeal from that order challenging the propriety of a new trial on any issue, a decision by the reviewing court that no new trial should have been granted renders the entry of a final judgment a purely ministerial act. In such a situation, said the supreme court in Bowen, the reviewing court should go ahead and consider all other issues properly raised which could be raised on appeal from the final judgment. As the supreme court pointed out, that is simply an expeditious use of judicial time.

We are not asked in the instant case simply to reverse the order granting a new trial, which would mandate the entry of an appealable final judgment. On the contrary, we are asked to reverse with directions that the trial judge enter an order granting a new trial on the issue of punitive damages as well as the issue of compensatory damages. This case clearly does not fall within the parameters of Bowen v. Willard.

For review of the directed verdict for appellees on the issue of punitive damages, appellant must await the entry of final judgment and that, in turn, must await the completion of the new trial on the issue of compensatory damages.

DISMISSED.

HOBSON, Acting C. J., and GRIMES, J., concur. . The trial judge expressed his decision by granting summary judgment for appellees on the issue of punitive damages, which was the equivalent of directing a verdict for appellees on that issue. In any event, a partial summary judgment for the defendant on the issue of punitive damages is not appealable. Kingsland v. National Advertising Company, 384 So. 2d 701 (Fla. 5th DCA 1980).

. An order denying a new trial is not appealable. Fla.R.App.P. 9.130(a)(4).

. A directed verdict for the defendant on the issue of punitive damages is not within the categories of nonfinal orders which may be appealed. Fla.R.App.P. 9.130(a)(3). Cf. Kingsland v. National Advertising Company, supra footnote I (partial summary judgment for defendant on issue of punitive damages is not appealable).

. Initially we denied appellees’ motion to dismiss without prejudice to appellees’ raising the same argument in their brief on the merits. Appellees did so, thus in effect renewing their motion.

.Since an appeal of an order granting a new trial is a plenary appeal pursuant to Florida Rule of Appellate Procedure 9.110 and the scope of review under that rule extends to any matter or ruling occurring prior to the filing of notice of appeal, the Bowen rule appears to be reflected in the appellate rules as revised in 1977.


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Cited By

  • Allard v. Al-Nayem Int'l, Inc., 59 So. 3d 198 (Fla. 2d DCA 2011)
    …e issues.”); City of Tampa v. Jorda, 445 So. 2d 699, 700 n. 1 (Fla. 2d DCA 1984) (noting that, pursuant to Bowen, City was entitled to argue in appeal from order granting new trial that directed verdict was error); Hill v. Am. Med. Affiliates, Inc., 387 So. 2d 1056, 1058 (Fla. 2d DCA 1980) (explaining that because reversal of order granting new trial renders entry of final judgment a purely ministerial act, reviewing court should go ahead and consider other issues raised that could be raised on appeal from fin…
  • Crown Pontiac, Inc. v. Bell, 547 So. 2d 290 (Fla. 2d DCA 1989)
    …it is clear that Crown is merely attempting to use this appeal as a vehicle to challenge the trial court’s decision denying Crown’s motion for directed verdict. This case is controlled by our reasoning in Hill v. American Medical Affiliates, Inc., 387 So. 2d 1056 (Fla. 2d DCA 1980), review denied, 397 So. 2d 778 (Fla.1981). In Hill, we held that: [T]he losing party may not appeal an order granting a new trial unless that party claims that it was error to grant a new trial on any issue. Where, as in the case…

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