R.E. RAGEN, APPELLANT,
v.
PARAMOUNT HUDSON, INC., APPELLEE
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Trial court erred in denying defendant's motion to set aside judgment based on newly discovered evidence that would probably have changed the trial result, requiring reversal and new trial.
A trial court must grant a motion to set aside a judgment under Fla.R.Civ.P. 1.540 when newly discovered evidence from an independent witness would probably have changed the trial result and reasonable diligence was exercised to discover it.
[1] The due diligence requirement for newly discovered evidence under Fla.R.Civ.P. …
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Join FLexlaw to unlock all legal intelligence“When, as here, it is likely that a correctable injustice has been done, we will not hesitate to order that a new trial be conducted based on all the available evidence.”
Court explaining that the due diligence requirement is not absolute when injustice appears likely.
Defendant sold a boat to plaintiff, and the trial court assessed compensatory and punitive damages based on evidence that a sunken boat was the one so…
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SCHWARTZ, Chief Judge.
We hold that the trial court erroneously denied the defendant-appellant’s Fla.R.Civ.P. 1.540 motion to set aside the judgment against him on the basis of newly discovered evidence. The proffered unequivocal testimony of an independent witness that a previously sunken boat was not the one allegedly sold to the plaintiff would probably have changed the result of the trial, in which compensatory and punitive damages were assessed on the basis of interested and uncertain evidence that it was. Dade National Bank of Miami v. Kay, 131 So. 2d 24 (Fla. 3d DCA 1961), cert. denied, 135 So. 2d 746 (Fla.1961). In addition, under the circumstances, it appears that reasonable diligence was exercised to discover the evidence in question. Dade National Bank of Miami v. Kay, supra.
With regard to the latter factor, moreover, it has been repeatedly held that the due diligence requirement is not a legal absolute. Jackson v. State, 416 So. 2d 10 (Fla. 3d DCA 1982); In re Estate of Hill, 294 So. 2d 46 (Fla. 3d DCA 1974). When, as here, it is likely that a correctable injustice has been done, we will not hesitate to order that a new trial be conducted based on all the available evidence. Jackson v. State, supra; Van Note v. State, 366 So. 2d 78 (Fla. 4th DCA 1978), cert. denied, 376 So. 2d 76 (Fla.1979). The order under review is therefore reversed and the cause remanded with directions to vacate the final judgment and to set the cause for trial.
Reversed.
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Citator
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Bray v. Elec. Door-Lift, Inc., 558 So. 2d 43 (Fla. 1st DCA 1989)…to establish the exercise of due diligence. King v. Harrington, 411 So. 2d 912, 915 (Fla. 2d DCA 1982), review denied, 418 So. 2d 1279 (Fla.1982). While the requirement of due [*48] diligence is not a legal absolute, Ragen v. Paramount Hudson, Inc., 434 So. 2d 907 (Fla. 3d DCA 1983), review denied, 444 So. 2d 417 (Fla.1984); Jackson v. State, 416 So. 2d 10 (Fla. 3d DCA 1982), the general rule is that motions for new trial are looked upon with disfavor as tending to encourage looseness in practice. Jerrico, In…
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Marlyn Tracey v. Wells Fargo Bank, 264 So. 3d 1152 (Fla. 2d DCA 2019)…k fairness dictates that upon remand the hearing officer be directed to submit an amended order in ... light of this opinion before the Department further reviews and acts upon the charges against [the] appellant."); Ragen v. Paramount Hudson, Inc., 434 So. 2d 907, 908 (Fla. 3d DCA 1983) ("When, as here, it is likely that a correctable injustice has been done, we will not hesitate to order that a new trial be conducted based on all the available evidence."); English v. Clark, 289 So. 2d 33, 35-36 (Fla. 1st DC…
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Bakalarz v. Luskin, 560 So. 2d 283 (Fla. 4th DCA 1990)…information. Timely discovery of circumstances which reveal a correctable injustice calls for the granting of a rehearing if the evidence goes to the heart of the issue and is not merely cumulative or impeaching. Cf. Ragen v. Paramount Hudson, Inc., 434 So. 2d 907 (Fla. 3d DCA 1983), rev. denied, 444 So. 2d 417 (Fla.1984); Perez v. Pearl, 411 So. 2d 972 (Fla. 3d DCA 1982); Dade Nat’l. Bank of Miami v. Kay, 131 So. 2d 24 (Fla. 3d DCA), cert. denied, 135 So. 2d 746 (Fla.1961). We deem to be inapposite those ca…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dade Nat'l Bank OF Miami v. KAY, 131 So. 2d 24 (Fla. 3d DCA 1961)
- Jackson v. State, 416 So. 2d 10 (Fla. 3d DCA 1982)
- Gideon v. Cochran, 135 So. 2d 746 (Fla. 1961)
- KAY v. Dade Nat'l Bank of Miami, 135 So. 2d 746 (Fla. 1961)
- van Note v. State, 366 So. 2d 78 (Fla. 4th DCA 1978)
- In re Est. of Ira C. Hill, Jr., 294 So. 2d 46 (Fla. 3d DCA 1974)