HAROLD BAILEY AND WILMA BAILEY, APPELLANTS,
v.
MOBILE HOME PARK REALTY, INC., APPELLEE

Fla. 2d DCA | 1991-04-19
No. 90-00916
SCHOONOVER, C.J., and PARKER, J., concur.
579 So. 2d 198 Florida District Court of Appeal, Second District (1991) Positive Treatment
Cited by 5 cases

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Synopsis

The Baileys appealed the denial of their post-trial motion, but the Florida District Court of Appeal dismissed the appeal for lack of jurisdiction because the notice of appeal was untimely. The court held that none of the three components of the Baileys' motion (directed verdict, arrest of judgment, or motion to vacate) were timely filed, and therefore none could extend the appellate deadline.


Holding

The notice of appeal was untimely and the appeal must be dismissed for lack of jurisdiction. The court held that none of the three components of the Baileys' motion could extend the appellate deadline: the renewed motion for directed verdict was untimely because it was not filed within ten days of the verdict; the motion in arrest of judgment was untimely because it was filed after judgment was entered; and the alternative motion to vacate verdict was untimely.


Headnotes

[1] A renewed motion for a directed verdict must be filed within ten days after the reception of a verdict to be timely.

[2] A motion in arrest of judgment suspends the time for filing a notice of appeal only if served after the verdict is received but before the judgment is entered.

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Key Quotes

“Within ten days after the reception of a verdict a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside.”

Establishes the strict time requirement for motions for directed verdict under Florida Rule of Civil Procedure 1.480(b)

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Facts & Procedural History

A jury verdict was returned on November 30, 1989, and final judgment was entered on December 8, 1989 and filed December 11, 1989. The Baileys served a…

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Opinion of the Court
RYDER, Judge.

RYDER, Judge.

The appellants, the Baileys, contend that the trial court erred by denying their post-trial motion titled “Renewed Motion for Directed Verdict, Motion in Arrest of Judgment and Alternative Motion to Vacate Verdict.” We decline to address the issues raised in this appeal and dismiss for lack of jurisdiction, because the notice of appeal was untimely.

In order to determine whether the notice of appeal was untimely, it is necessary to understand the chronology of the proceedings in this case. The jury verdict was returned and filed on November 30, 1989. Thereafter, the final judgment was entered on December 8, 1989 and filed December 11, 1989. The Baileys served their motion on December 11, 1989 and it was filed on December 12, 1989. The order denying their motion was filed on February 26, 1990. Subsequently, on March 26, 1990, the Baileys filed a notice of appeal, 106 days after the final judgment was filed. The question is whether the Baileys’ motion extended the time to appeal. Because the Baileys filed a three-in-one motion, a motion in arrest of judgment, a renewed motion for directed verdict and an alternative motion to vacate verdict, it is necessary to examine each one separately to determine if one of the three could extend the time for filing a notice of appeal.

First, the renewed motion for directed verdict was untimely. Florida Rule of Civil Procedure 1.480(b) provides that “[wjithin ten days after the reception of a verdict a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside.... ” The time period for filing this motion expired on December ll.1 While the Baileys served their motion on December 11, it was not filed until December 12. Rule 1.480 is unlike the rehearing rule which provides for a rehearing motion to be served within ten days after the verdict. Fla.R.Civ.P. 1.530. Therefore, the renewed motion is untimely and did not extend the time of appeal.

Second, while a motion in arrest of judgment will suspend the time for filing a notice of appeal, it has to be served after the verdict is received, but before the judgment is entered. Fla.R.App.P. 9.020; Harrington v. Bowman, 102 Fla. 339, 136 So. 229 (1931), modified, 106 Fla. 86, 143 So. 651 (1932) Here, the judgment was entered on December 8, 1989, thus making the motion three days late. Therefore, the motion for arrest of judgment was untime ly and did not suspend the time period for the Baileys to file their notice of appeal.

Third, the alternative motion to vacate verdict was untimely pursuant to Florida Rule of Civil Procedure 1.480(b). The Baileys essentially asked the court to direct the verdict or, in the alternative, set it aside. In connection with a motion for directed verdict, the alternative motion to vacate was untimely. If the Baileys had intended to bring the motion pursuant to Florida Rule of Civil Procedure 1.540(b), then the motion, while timely, did not stay the time to appeal.

Finally, we must consider whether the motion, despite its title but considering the substance of it, could be treated as a motion for rehearing which would have been timely in accordance with rule 1.530. However, it appears that the Baileys intended the entire motion to be one to vacate the verdict and enter judgment on their motion for directed verdict. Therefore, because the Baileys’ motion was untimely, thereby precluding it from suspending the time for filing .the notice of appeal, we dismiss this appeal for lack of jurisdiction.

Dismissed.

SCHOONOVER, C.J., and PARKER, J., concur. . The ten-day time period actually expired on Sunday, December 10, 1989; therefore, pursuant to Florida Rule of Civil Procedure 1.090, the Baileys’ time period was extended to Monday, December 11, 1989.


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Citator

Cited By

  • Lew Earle Williams v. Sch. Bd. OF Palm Beach Cnty., 770 So. 2d 706 (Fla. 4th DCA 2000)
    ….Ct. 125, 127-28, 97 L.Ed. 77 (1952)(construing a similar federal rule to forbid the trial judge from entering judgment on an untimely motion even if the court specifically reserved ruling on it at trial), See also Bailey v. Mobile Home Park Realty, 579 So. 2d 198 (Fla. 2d DCA 1991)(post-trial motion for directed verdict which was one day late did not toll rendition of judgment resulting in appeal being untimely). The trial court, accordingly, erred in granting the School Board’s motion for directed verdict.…
  • State v. Haddix, 668 So. 2d 1064 (Fla. 4th DCA 1996)
    …3 provides enhanced penalties for anyone convicted under subsection (1) who had a BAL of .20 percent or above or who was accompanied in the vehicle by a minor. However, unlike DUI with property damage or injury to a person, see, e.g., Reed v. State, 579 So. 2d 198 (Fla. 2d DCA 1991); Leone v. State, 590 So. 2d 29 (Fla. 5th DCA 1991), or felony DUI based on three or more prior DUI convictions, see, e.g., Rodriguez, 575 [*1068] So. 2d at 1265, the degree or level of crime does not change due to the .20 percent…
  • State v. Vanette Webb, 786 So. 2d 602 (Fla. 1st DCA 2001)
    …Webb's conviction pursuant to her motion seeking new trial. In the body of such motion, Webb renewed her motion for judgment of acquittal and cited the rule governing motions in arrest of judgment. See, e.g., Bailey v. Mobile Home Park Realty, Inc., 579 So. 2d 198 (Fla. 2d DCA 1991); State v. Harris, 439 So. 2d 265 (Fla. 2d DCA 1983).…

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