KINGS POINT UTILITY, INC., ET AL., APPELLANTS,
v.
DEPARTMENT OF ENVIRONMENTAL REGULATION, ETC., ET AL., APPELLEES
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The court held that a new trial cannot be granted sua sponte based solely on the attorney's poor performance.
The trial court granted a new trial for the appellee sua sponte, citing the appellee's attorney's poor case presentation. The appellee urged the court…
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DAUKSCH, Judge.
This is an appeal from an order granting, sua sponte, a new trial for appellee on the basis that its attorney did such a poor job presenting its case that it was entitled to another try. Research by both counsel and this court reveals no precedent for such a ruling.
Appellee urges this court to vacate or reverse the order of involuntary dismissal announced at the close of appellee’s case. We decline to consider the order because it was not rendered (written and filed) but we do say that we now make no decision regarding any legal conclusion reached by the trial judge, save the one here reversed, and declare that nothing which occurred below is now law of the case.
We reverse the order for new trial and remand the case for further proceedings, which could include an order on the oral declaration of involuntary dismissal or a continuation of the trial from the point after appellee rested. The same trial judge who ordered the new trial and heard the first part of the proceedings should receive and consider the case on remand.
REVERSED and REMANDED.
HARRIS, J., and WALDEN, J.H., Senior Judge, concur.