THOMAS FRAZIER, APPELLANT,
v.
SEABOARD SYSTEM RAILROAD, INC., APPELLEE

Fla. 1st DCA | 1986-06-24
No. BL-165
BOOTH, C.J., and ERVIN and THOMPSON, JJ., concur.
490 So. 2d 213 Florida District Court of Appeal, First District (1986) Positive Treatment
Cited by 2 cases

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Synopsis

The First District Court of Appeal dismissed an appeal for lack of jurisdiction because the notice of appeal was not timely filed. The appellant sought to appeal an order granting a new trial, but filed the notice more than 30 days after entry of that order, and a motion for rehearing did not toll the time for appeal.


Holding

The notice of appeal was not timely. Although the appellant argued that final judgment was not rendered until the alternative J.N.O.V. motion was expressly denied, the appeal was from the order granting new trial, not from the final judgment in appellant's favor. Additionally, a motion for rehearing does not toll rendition of an order granting new trial because no authorization exists for rehearing of such orders.


Headnotes

[1] A notice of appeal filed more than 30 days after the entry of an order granting a new trial is untimely.

[2] A motion for rehearing of an order granting a new trial is not authorized and does not toll the rendition of the order.

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Key Quotes

“This appeal is from the order granting a new trial. It is not an appeal from the final judgment which is in appellant's favor.”

Establishes that appellant was appealing the wrong order and that the final judgment was actually in appellant's favor, making the appeal from the new trial order problematic.

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Facts & Procedural History

After an adverse jury verdict and entry of judgment, the appellee filed a timely motion for new trial and alternative motion for judgment notwithstand…

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Opinion of the Court
PER CURIAM

PER CURIAM

Appellee moves to dismiss this cause for lack of jurisdiction because the notice of appeal was not timely filed. After an adverse jury verdict and entry of judgment, appellee filed a timely motion for new trial and alternative motion for judgment notwithstanding the verdict (J.N.O.V.).

On December 5, 1985, the trial court granted appellee’s motion for new trial, without expressly ruling on the alternative motion for J.N.O.V. Appellant filed a motion for rehearing of that order ten days thereafter.

The trial court denied appellant’s motion for rehearing on January 9, 1986.

On February 6, 1986, the trial court entered an order expressly denying appellee’s alternative motion for J.N.O.V. Appellant filed the notice of appeal on February 7, 1986.

We agree that the notice was not timely and dismiss the appeal.

Appellant contends that the appeal is timely because the final judgment was not rendered until the trial court denied appellee’s alternative motion for J.N.O.V. See Fla.R.App.P. 9.020(g). Assuming appellant is correct and the final judgment was not rendered until express disposition of the alternative motion, the appeal is still untimely. This appeal is from the order granting a new trial. It is not an appeal from the final judgment which is in appellant’s favor. Appellant also contends that the filing of a motion for rehearing on the granting of new trial tolled the rendition of the new trial order. Under Rule 9.110, Florida Rules of Appellate Procedure, appeals 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 30 days after entry of the order granting new trial was not timely.

The Supreme Court has held that, as regards the scope of appellate review, appeals from orders granting new trial should be treated as appeals from final orders to the extent possible. Bowen v. Willard, 340 So. 2d 110 (Fla.1976). We find nothing in that decision, however, authorizing the treatment of orders granting new trial as final orders for purposes of rehearing or otherwise affecting the untimeliness of this notice of appeal. In an abundance of caution, however, we certify the following as being a question of great public importance: '

SHOULD AN ORDER GRANTING A NEW TRIAL BE TREATED AS A FINAL ORDER TO THE EXTENT THAT A TIMELY MOTION FOR REHEARING OR RECONSIDERATION WILL TOLL RENDITION OF THE ORDER FOR PURPOSES OF FILING THE NOTICE OF APPEAL?

Appeal dismissed.

BOOTH, C.J., and ERVIN and THOMPSON, JJ., concur.


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Citator

Cited By

  • Frazier v. Seaboard Sys. R.R., Inc., 508 So. 2d 345 (Fla. 1987)
    …BARKETT, Justice. The First District in Frazier v. Seaboard System Railroad, Inc., 490 So. 2d 213, 214 (Fla. 1st DCA 1986), certified the following question as one of great public importance: Should an order granting a new trial be treated as a final order to the extent that a timely motion for rehearing or reconsideration will toll rendition o…

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