ALEX SALKAY AND PATRICIA ANN WILLIAMS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANNA SALKAY, APPELLANTS,
v.
STATE FARM MUTUAL AUTOMOBILE INS. CO., CHARLES ZALIS AND NATIONAL CAR RENTAL & LEASING CO., APPELLEES; STATE FARM MUTUAL AUTOMOBILE INS. CO., CHARLES ZALIS AND NATIONAL CAR RENTAL & LEASING CO., APPELLANTS, V. ALEX SALKAY AND PATRICIA ANN WILLIAMS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANNA SALKAY, APPELLEES
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State Farm appealed a trial court's order vacating a remittitur and reinstating a jury verdict for $108,000 in favor of the Salkays. The appellate court held that once a remittitur order is granted, it is a substantive right not subject to modification or rehearing, and therefore the trial court lacked authority to vacate it. The court affirmed the remittitur on the merits, finding the trial court did not abuse its discretion in determining the jury verdict was against the manifest weight of the evidence.
An order granting remittitur is a substantive right, not interlocutory, and therefore is not subject to modification or rehearing absent fraud or clerical error. The trial court was without authority to vacate the remittitur order. On the merits, the trial court did not abuse its discretion in granting remittitur, as the evidence clearly showed the plaintiff was negligent, supporting the trial court's finding that the jury verdict was against the manifest weight of the evidence.
[1] An order granting remittitur or, in the alternative, a new trial confers a substantive right and is not subject to modification absent fraud or clerical error.
[2] A trial court is without authority to vacate an order granting remittitur once it has been properly entered.
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Join FLexlaw to unlock all legal intelligence“An order granting remittitur or, in the alternative, a new trial confers a substantive right. It is not interlocutory in nature and, therefore, does not remain subject to modification.”
Establishes the core holding that remittitur orders cannot be vacated or modified after entry.
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Join FLexlaw to unlock all legal intelligenceA jury awarded $108,000 in damages to the Salkays against State Farm in an automobile insurance liability case. On July 24, 1979, the trial court gran…
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FERGUSON, Judge.
A jury awarded damages to appellees and against appellant, State Farm Mutual Automobile Insurance Co., in the total amount of $108,000.
On July 24, 1979, the trial court issued an order granting State Farm’s motion for remittiur.
On August 7, 1979, the same court vacated that motion in its entirety and granted appellees Salkays’ motion for rehearing. The final judgment (as previously amended) was reinstated. State Farm appeals from that final judgment alleging error in subjecting the order for remittitur to rehearing.
We agree. The Salkays allege by means of cross-appeal that the original entry of the remittitur was error. An order granting remittitur or, in the alternative, a new trial confers a substantive right. It is not interlocutory in nature and, therefore, does not remain subject to modification. Huffman v. Little, 341 So. 2d 268 (Fla. 2d DCA 1977). In the absence of fraud or clerical error, once the motion for a new trial is granted it is not even subject to a motion for rehearing. State v. Burton, 314 So. 2d 136 (Fla.1975); Huffman, supra; DePadro v. Moore, 215 So. 2d 27 (Fla. 4th DCA 1968), cert. denied, 222 So. 2d 748 (Fla.1969); Mathis v. Butler, 128 So. 2d 142 (Fla. 2d DCA 1961).
Because we find the trial court was without authority to vacate the order granting remittitur, we must consider appellees’ argument that the trial court’s original order granting the remittitur was improper. The court’s order granting remitti-tur in this case makes the specific finding:
[T]he verdict of the jury finding the Plaintiff totally without any negligence which was a legal cause of the accident, is not supported by the record and is against the manifest weight of evidence. It was clear and overwhelming from the manifest weight of the evidence that the Plaintiff was negligent in the manner and way he crossed State Road 84 when Plaintiff’s view of the Defendant’s lane was obscured and blocked prior to the time Plaintiff entered the lane the Defendant was traveling in.
The order of a trial court comes to the appellate court with a presumption of correctness and an appellate court is reluctant to reverse an order granting a remittitur or new trial. If reasonable men could differ, the trial judge’s ruling on a motion for a new trial or remittitur must be upheld. Mere disagreement on the part of the appellate court is insufficient to permit the overturning of the trial court’s determination; the trial court’s abuse of discretion must be clearly unreasonable and must patently appear from the record. Baptist Memorial Hospital, Inc. v. Bell, 384 So. 2d 145, 146 (Fla.1980); Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Castlewood International Corporation v. LaFleur, 322 So. 2d 520 (Fla.1975); Laskey v. Smith, 239 So. 2d 13 (Fla.1970); Victor Manuel Rivera Gator Freightways v. White, 386 So. 2d 1233 (Fla. 3d DCA 1980).
On consideration of the record we hold the ground relied upon by the trial court could properly support the order of remittitur or in the alternative a new trial.1 Wackenhut Corporation v. Canty, 359 So. 2d 430 (Fla.1978); Cloud v. Fallis, 110 So. 2d 669 (Fla.1959); Bartholf v. Baker, 71 So. 2d 480 (Fla.1954); Aronson v. Siquier, 318 So. 2d 452 (Fla. 3d DCA 1975).
Remitti-tur as an alternative to a new trial is consistent with the trial court’s finding that the plaintiff was also negligent.
The order purporting to vacate the order of remittitur is reversed; the order granting remittitur is affirmed. The cause is remanded for further proceedings consistent with this opinion.
. This cause of action predates Section 768.043, Florida Statutes, (1977).
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Frazier v. Seaboard Sys. R.R., Inc., 508 So. 2d 345 (Fla. 1987)…-trial order is not subject to a motion for rehearing absent fraud or clerical error, and the district courts have uniformly adhered to this rule. Owens v. Jackson, 476 So. 2d 264 (Fla. 1st DCA 1985); Salkay v. State Farm Mutual Automobile Ins. Co., 398 So. 2d 916 (Fla. 3d DCA), pet. for rev. dism., 402 So. 2d 612 (Fla.1981); Huffman v. Little, 341 So. 2d 268 (Fla. 2d DCA 1977); Fiber Crete Homes, Inc. v. Division of Administration, 315 So. 2d 492 (Fla. 4th DCA 1975); DePadro v. Moore, 215 So. 2d 27 (Fla. 4th…
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Thompson v. Crawford, 479 So. 2d 169 (Fla. 3d DCA 1985)…n nature, see Huffman v. Little, 341 So. 2d 268 (Fla. 2d DCA 1977) (in the absence of fraud or clerical error, once motion for new trial is determined, it does not remain subject to modification); see also Salkay v. State Farm Mutual Automobile Co., 398 So. 2d 916 (Fla. 3d DCA) (same), rev. denied, 402 So. 2d 612 (Fla.1981), such an order is not entitled to the same protection as a final judgment. See DeClaire, 453 So. 2d at 380 (“[T]he grounds upon which a final judgment may be set aside, other than by appea…
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Cedars OF Lebanon Hosp. Corp. v. Orlando Silva, M.D., 476 So. 2d 696 (Fla. 3d DCA 1985)…Fla.1983); Baptist Memorial Hospital, Inc. v. Bell, 384 So. 2d 145 (Fla.1980); Avis Rent-A-Car Systems, Inc. v. Garmas, 440 So. 2d 1311 (Fla. 3d DCA 1983), rev. denied, 451 So. 2d 848 (Fla.1984); Salkay v. State Farm Mutual Automobile Insurance Co., 398 So. 2d 916 (Fla. 3d DCA), rev. dismissed, 402 So. 2d 612 (Fla.1981); Jones v. Airport Rent-A-Car, Inc., 342 So. 2d 104 (Fla. 3d DCA 1977). There is no disagreement among the parties that a partial new trial limited to a single issue is inappropriate when the…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959)
- The Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla. 1978)
- Baptist Mem'l Hosp., Inc. v. Bell, 384 So. 2d 145 (Fla. 1980)
- Castlewood Int'l Corp. v. LaFLEUR, 322 So. 2d 520 (Fla. 1975)
- Laskey v. Smith, 239 So. 2d 13 (Fla. 1970)
- Bartholf v. Baker, 71 So. 2d 480 (Fla. 1954)
- State v. Ollis Burton, 314 So. 2d 136 (Fla. 1975)
- DePADRO v. Moore, 215 So. 2d 27 (Fla. 4th DCA 1968)
- Jarrell v. Huffman, 341 So. 2d 268 (Fla. 2d DCA 1977)