NUNZIO MICHAEL FAZIO, APPELLANT,
v.
RUSSELL BUILDING MOVERS, INC., AND FIREMAN'S FUND INSURANCE COMPANY, APPELLEES
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The Florida Court of Appeal reversed and remanded a trial court judgment because the trial judge refused to exercise discretion on plaintiff's motion for new trial, instead announcing a blanket policy of denying all such motions based on trial matters. The court held that trial judges must individually consider motions for new trial and cannot adopt categorical policies that foreclose discretionary review.
A trial court abuses its discretion when it follows an invariable policy of denying motions for new trial involving trial matters, because trial courts must give individual consideration to such motions based on the facts of each case and are required to exercise the discretion afforded them.
[1] A trial court abuses its discretion by refusing to exercise it when ruling on a motion for a new trial.
[2] A trial court cannot adopt a fixed policy of denying motions for new trial based on matters that arose during the trial.
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Join FLexlaw to unlock all legal intelligence“You can amend, but I made it a policy that I don't grant new trials unless something brand new has happened since the trial. If you are going on the basis of what took place at the trial, I don't grant a new trial because I heard it, I ruled.”
The trial judge's statement of its inflexible policy that formed the basis for abuse of discretion
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Join FLexlaw to unlock all legal intelligenceNunzio Fazio filed a motion for new trial after an adverse verdict, raising grounds including that the verdict was contrary to the manifest weight of …
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PER CURIAM.
We find no merit in any of the contentions raised by plaintiff Nunzio Fa-zio in this appeal save one, namely, that the trial court, in effect, refused to exercise its discretion when ruling on appellant’s motion for new trial. At the hearing on the plaintiff’s motion for new trial, the trial court stated:
“THE COURT: You can amend, but I made it a policy that I don’t grant new trials unless something brand new has happened since the trial.
If you are going on the basis of what took place at the trial, I don ⅞ grant a new trial because I heard it, I ruled.
Anything you disagree with, take an appeal. No bad feelings about it at all.”
R. 225 (emphasis added).
Although a trial court has broad discretion to grant or deny a motion for new trial, see Cloud v. Fallís, 110 So. 2d 669 (Fla.1959); Ford v. Robinson, 403 So. 2d 1379 (Fla. 4th DCA 1981); White v. Martinez, 359 So. 2d 7 (Fla. 3d DCA 1978), it is plain that the court in no way exercises that discretion if, as here, it follows an invariable rule of always denying such motions if they involve matters which arose at trial. A litigant, such as the plaintiff herein, has a perfect right to file a motion for new trial and raise, as grounds, matters which arose at the trial — such as the standard ground, urged below, that the verdict is contrary to the manifest weight of the evidence. Nunberg v. Brodsky, 224 So. 2d 727, 729 (Fla. 3d DCA 1969). A trial court must, in turn, give individual consideration to such a motion depending on the facts of the case and is not entitled, as here, to adopt a set policy of denying all such motions. A trial court is always required to exercise the discretion afforded it and since that discretion was not exercised in this case, the judgment must be reversed. Compare Quinones v. State, 448 So. 2d 608 (Fla. 3d DCA 1984).
The final judgment under review is reversed and the cause is remanded to the trial court with directions to exercise its discretion in ruling on the plaintiffs motion for new trial. If the said motion is denied, the final judgment shall be re-entered; if the said motion is granted, a new trial shall be ordered.
Reversed and remanded.
SCHWARTZ, C.J., and HUBBART, J., concur. HENDRY, J., dissents.
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Glosson v. The Honorable Harold Solomon, 490 So. 2d 94 (Fla. 3d DCA 1986)…bail for accused probation violators. See Bennington v. Thornton, 370 So. 2d 856 (Fla. 4th DCA 1979). Where a court is given discretion to act on a matter, the refusal to exercise such discretion is error, see Fazio v. Russell Building Movers, Inc., 469 So. 2d 844 (Fla. 3d DCA 1985) (reversing denial of motion for new trial where sole reason for denial was trial court’s invariable policy of denying all such motions except when based on some post-trial occurrence; remanded with directions that trial court exer…
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Clover Boykin v. Honorable Edward A. Garrison, 658 So. 2d 1090 (Fla. 4th DCA 1995)…us remedy. Glosson v. Solomon, 490 So. 2d 94 (Fla. 3d DCA 1986); accord Moore v. Florida Parole and Probation Commission, 289 So. 2d 719 (Fla.), cert. denied, 417 U.S. 935, 94 S.Ct. 2649,41 L.Ed.2d 239 (1974); Fazio v. Russell Building Movers, Inc., 469 So. 2d 844 (Fla. 3d DCA 1985). The Florida Rules of Criminal Procedure and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), expressly provide the trial court with the [*1091] discretion to accept or reject negotiated, no contest and…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959)
- Ford v. Robinson, 403 So. 2d 1379 (Fla. 4th DCA 1981)
- Royal Odell White, Jr. v. Oswaldo Tomas Martinez, 359 So. 2d 7 (Fla. 3d DCA 1978)
- Drowne v. Fla. Indus. Comm'n & DCS/Comptroller, 224 So. 2d 727 (Fla. 1st DCA 1969)
- Lazro Quinones v. State, 448 So. 2d 608 (Fla. 3d DCA 1984)