MARIE CULPEPPER AND HER HUSBAND, ORALLE V. CULPEPPER, APPELLANTS,
v.
CHARLES WESLEY BRITT, ET AL., APPELLEES

Fla. 2d DCA | 1983-07-06
No. 82-2893
GRIMES, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.
434 So. 2d 31 Florida District Court of Appeal, Second District (1983) Positive Treatment
Cited by 4 cases

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Synopsis

The appellate court sua sponte dismissed an appeal as untimely because the appellants failed to file their notice of appeal within thirty days of the final judgment, and their motion for new trial was also untimely filed beyond the ten-day deadline after the jury verdict.


Holding

The appeal is untimely and is dismissed. A motion to tax costs does not suspend the rendition of the verdict under Florida Rule of Appellate Procedure 9.020(g), so the appellants' motion for new trial was untimely filed on February 19, 1982, more than ten days after the January 26, 1982 filing of the verdict.


Headnotes

[1] A motion to tax costs does not postpone the rendition of a jury verdict for purposes of calculating the time to file a motion for new trial.

[2] A motion for new trial must be filed within ten days after the rendition of the jury verdict.

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Key Quotes

“Under rule 9.020(g), Florida Rule of Appellate Procedure, as it now exists, only specifically enumerated motions have the effect of delaying rendition, and a motion to tax costs is not one of them.”

Establishes the controlling rule that motions to tax costs do not suspend rendition of verdict under current appellate procedure

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Facts & Procedural History

A jury verdict was rendered and filed on January 26, 1982. The appellees filed a motion to tax costs on January 29, 1982. A final judgment was entered…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The appellees have raised in their brief the issue of the timeliness of the appeal in this case. Upon consideration of this issue sua sponte and prior to oral argument, we conclude that the appeal is, in fact, untimely, and we therefore dismiss.

The jury verdict for the appellees was dated January 21, 1982, and was filed on January 26,1982. On January 29,1982, the appellees filed a motion to tax costs that was served the previous day.

On February 9, 1982, the trial judge entered a “final judgment pursuant to the jury verdict” which was filed on February 11, 1982. The appellants then filed and served a motion for new trial on February 19, 1982. The trial judge entered a final judgment taxing costs on March 26, 1982, which was filed on March 29,1982. After a delay caused by an internal transfer of cases, a new judge denied the motion for new trial in an order entered November 30, 1982, and filed December 1, 1982. The appellants filed their notice of appeal on December 28, 1982.

Obviously, the notice of appeal was not filed within thirty days of the final judgment. However, appellants argue that they filed their appeal within thirty days of the denial of their motion for new trial. This argument presupposes that their motion for new trial was timely filed in spite of rule 1.530(b), Florida Rule of Civil Procedure, which requires motions for new trial to be filed within ten days after the rendition of the jury verdict. Appellants assert that appellees’ motion to tax costs had the effect of delaying rendition of the jury verdict so as to make their motion for new trial timely-

Appellants’ argument relies on Lehmann v. Cloniger, 294 So. 2d 344 (Fla. 1st DCA 1974), but that case is not controlling. Whatever the wisdom of that decision may otherwise be, the court there relied on the former wording of rule 1.3, Florida Appellate Rule, now rule 9.020(g), Florida Rule of Appellate Procedure. The former rule provided that the filing of a timely post-trial motion permitted by the rules postponed “rendition” until disposition of the motion. The Lehmann court bottomed its holding on the post-trial motion to tax costs being such a motion as contemplated by the rules that suspended “rendition” of the verdict. Under rule 9.020(g), Florida Rule of Appellate Procedure, as it now exists, only specifically enumerated motions have the effect of delaying rendition, and a motion to tax costs is not one of them.

The correct rule to be applied here is stated in Bescar Enterprises, Inc. v. Rotenberger, 221 So. 2d 801 (Fla. 4th DCA 1969). Since the post-trial motion to tax costs did not suspend rendition of the verdict, appellants’ motion for new trial was clearly untimely as it was served on February 19, 1982, and the jury verdict was filed January 26, 1982. There was nothing that occurred in between that would have made the date of rendition any date other than the filing date of January 26, 1982, and it therefore became the date of rendition of the jury verdict.

This cause is therefore dismissed.

GRIMES, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


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Citator

Cited By

  • Pruitt v. Brock, 437 So. 2d 768 (Fla. 1st DCA 1983)
    …l exists even after Casto is evidenced by two recent decisions addressing the issue of when a jury verdict is rendered for purposes of a timely motion for new trial. See Menfí v. Exxon Company, 433 So. 2d 1327 (Fla. 3d DCA 1983); Culpepper v. Britt, 434 So. 2d 31 (Fla. 2d DCA 1983). Although we find it unnecessary to consider the wisdom of Casto in determining the issue before us, we would repeat the recommendation of the Fourth District Court of Appeal, made some ten years ago, to the effect that “the sever…
  • Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So. 2d 988 (Fla. 1st DCA 2002)
    …effective to suspend rendition of the time for an appeal unless it is one of the motions identified in the rule. See Klemba v. State, 490 So. 2d 1050 (Fla. 4th DCA 1986); Joseph v. State, 437 So. 2d 245, 246 (Fla. 5th DCA 1983); Culpepper v. Britt, 434 So. 2d 31, 32 (Fla. 2d DCA 1983). If a party files a motion that is authorized in the proceeding, but not listed in rule 9.020(h), the time for filing an appeal will run uninterrupted from the date the final order was reduced to writing, signed, and filed wit…

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