CLARENCE B. OWENS, AS DULY APPOINTED AND ACTING PERSONAL REPRESENTATIVE OF THE ESTATE OF MAXINE OWENS, DECEASED, APPELLANT,
v.
ROYCE V. JACKSON, M.D., AND TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, APPELLEES
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The court held that a motion for reconsideration of an order granting a new trial, absent fraud or clerical error, does not toll the time for filing a notice of appeal. Because the appellant filed the notice of appeal more than 30 days after rejection of the remittitur without an authorized tolling motion, the appeal was untimely and dismissed.
A motion for reconsideration of an order granting a new trial, absent fraud or clerical error, is not an authorized motion for purposes of tolling the appeal deadline. The trial court has no authority to revisit such an order except in cases of fraud or clerical error, making this a jurisdictional rule.
[1] A motion for reconsideration of an order granting a new trial, absent fraud or clerical error, is not an authorized motion that tolls the time for filing a notice of appe…
[2] A trial court is without authority to entertain or consider a petition for rehearing addressed to an order granting or denying a motion for new trial, absent fraud or cle…
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Join FLexlaw to unlock all legal intelligence“when a motion for new trial is granted or denied 'absent fraud or clerical error' ... 'the court is without authority to entertain or consider a petition for re-hearing addressed to such an order'”
Establishes the jurisdictional principle that courts cannot reconsider new trial orders without fraud or clerical error
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Join FLexlaw to unlock all legal intelligenceThe trial court rendered an order of remittitur or new trial on all issues on February 25, 1985. The remittitur was rejected on March 13, 1985, starti…
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BARFIELD, Judge.
The issue before the court on appellees’ motion to dismiss the appeal is whether a motion for reconsideration of an order granting a new trial, absent fraud or clerical error, is an authorized motion tolling the time for filing a notice of appeal pursuant to Fla.R.App.P. 9.020(g). We hold that it is not such an authorized motion, and consequently, the time for filing the notice of appeal was not tolled.
The Florida Supreme Court, by implication, mandated this holding when it approved the rule stated by the district court in Burton v. State, 296 So. 2d 79 (Fla. 4th DCA 1974): “... when a motion for new trial is granted or denied ‘absent fraud or clerical error’ ... ‘the court is without authority to entertain or consider a petition for re-hearing addressed to such an order’.” State v. Burton, 314 So. 2d 136, 137 (Fla.1975). If the court has no authority even to entertain or consider such a motion, the rule is jurisdictional. This construction is suggested by the Second District Court of Appeal in Huffman v. Little, 341 So. 2d 268 (Fla. 2d DCA 1977), cert. den., Little v. Huffman, 348 So. 2d 949, although in that case the court determined it unnecessary to decide whether there was a limited time period during which the trial judge could reconsider an order granting a new trial. The Third District Court of Appeal has said quite specifically, “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.” Salkay v. State Farm Mut. Auto Ins. Co., 398 So. 2d 916, 917 (Fla. 3d DCA 1981), pet. for rev. dism., 402 So. 2d 612.
Fla.R.App.P. 9.020(g) provides for the tolling of the time for filing a notice of appeal upon the filing of an authorized motion for rehearing. Our reading of Fla. R.C.P. 1.530, together with the authorities cited above, supports our conclusion that the trial court has no authority to revisit an order granting a new trial, absent fraud or clerical error. The trial court rendered an order of re-mittitur or new trial on all issues as to all parties on February 25, 1985. The remit-titur was rejected on March 13, 1985. The time for filing the notice of appeal ran thirty days after rejection of the remittitur in this case. The notice of appeal was not filed until April 25, 1985.
The trial court’s order dismissing the claim on behalf of Annette Owens and Nya-ma Owens not having been rendered until April 16, 1985, the notice of appeal as it relates to those claims was timely filed.
The motion to dismiss the appeal of Clarence B. Owens, as Personal Representative of the Estate of Maxine Owens, Deceased, is GRANTED.
SMITH and NIMMONS, JJ., concur.
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Frazier v. Seaboard Sys. R.R., Inc., 508 So. 2d 345 (Fla. 1987)…e overwhelming weight of authority in Florida has long adhered to the rule that a new-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 Administ…
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McGEE v. McGEE, 487 So. 2d 412 (Fla. 4th DCA 1986)…dered until disposition thereof. Fla.R.App.P. 9.020(g). However, a motion for rehearing is not authorized to be taken from an interlocutory or non-final order, and therefore does not delay the time of filing a writ of. certio-rari. Owens v. Jackson, 476 So. 2d 264 (Fla. 1st DCA 1985); Williams v. Department of Health and Rehabilitative Services, 468 So. 2d 504 (Fla. 5th DCA 1985); Hofer v. Gil De Rubio, 409 So. 2d 527 (Fla. 5th DCA 1982). In the present case, the writ of certiorari was untimely because the…
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Frazier v. Seaboard Sys. R.R., Inc., 490 So. 2d 213 (Fla. 1st DCA 1986)…from orders granting new trial follow the same procedure as appeals from final orders. However, orders granting new trial are not themselves final orders, and there is no authorization for rehearing of an order granting new trial. Owens v. Jackson, 476 So. 2d 264 (Fla. 1st DCA 1985). Since the motion for rehearing is not authorized, the filing of the motion did not toll rendition of the order granting new trial. Therefore, the filing of a notice of appeal more than [*214] 30 days after entry of the order gra…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Ollis Burton, 314 So. 2d 136 (Fla. 1975)
- Jarrell v. Huffman, 341 So. 2d 268 (Fla. 2d DCA 1977)
- Salkay v. State Farm Mut. Auto. INS. Co., 398 So. 2d 916 (Fla. 3d DCA 1981)
- Ollis Burton v. State, 296 So. 2d 79 (Fla. 4th DCA 1974)