OTIS ELEVATOR COMPANY, PETITIONER,
v.
THE HONORABLE NORMAN S. GERSTEIN, JIMMIE FRAZIER, AND SUZETTE FRAZIER, RESPONDENTS
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A successor judge has the authority to rule on a motion for a new trial in a jury case.
[1] A successor judge has the authority to rule upon a motion for a new trial in a jury case.
[2] A writ of mandamus may be issued to instruct a trial court to rule upon pending post-trial motions.
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Join FLexlaw to unlock all legal intelligencePlaintiff obtained a jury verdict and judgment against Otis Elevator. Otis filed post-trial motions, but the original judge recused himself. Successor…
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PER CURIAM.
Jimmie Frazier brought a personal injury action arising out of an accident involving an industrial lift truck manufactured by the defendant, Otis Elevator Company [Otis]. The trial of this case resulted in a jury verdict in favor of the plaintiff. Judge Joseph M. Nadler entered a final judgment for the plaintiff based on the jury verdict. Otis served a motion for judgment in accordance with motion for directed verdict or in the alternative, motion for new trial. Judge Nadler held two hearings on these motions, but issued no ruling. Instead, on the court’s own motion, Judge Nadler recused himself from the case.
The case was reassigned to Judge James Henderson, who also recused himself. Then, the case was reassigned to Judge Norman Gerstein. Upon receiving the pending motions, Judge Gerstein notified the parties that he did not have the authority to rule on their merits. Otis petitioned the court for rehearing. After a hearing on whether Judge Gerstein, as a successor judge, had the authority to rule on the motions, the trial court declined to grant rehearing or to rule on the post-trial motions. Otis petitioned this court for a writ of mandamus to instruct the trial court to rule upon the post-trial motions.
Based on the Florida Supreme Court’s decisions in Wolkowsky v. Goodkind, 153 Fla. 267, 14 So. 2d 398 (1943), and Leibovit v. Garfunkel, 68 Fla. 463, 67 So. 98 (1914), as well as this court's decision in General Hospital of Greater Miami, Inc. v. Gager, 160 So. 2d 749 (Fla. 3d DCA), cert. denied, 168 So. 2d 145 (Fla.1964), that a successor judge has the authority to rule upon a motion for a new trial in a jury case, we grant the petition and issue the writ of mandamus instructing the court to rule upon the merits of the pending motions.1
. The suggestions to the contrary in K.C. v. A.P., 577 So. 2d 669, 670 (Fla. 3d DCA), review denied, 589 So. 2d 289 (Fla.1991), and State ex rel. Wesley Constr. Co. v. O’Connell, 347 So. 2d 442, 443 n. 1 (Fla. 3d DCA 1977), are, in our view, dictum.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nat'l Healthcorp Ltd. P'ship v. Cascio, 725 So. 2d 1190 (Fla. 2d DCA 1998)…ion for new trial. See Wolkowsky v. Goodkind, 153 Fla. 267, 14 So. 2d 398 (1943); Wohlfiel v. Morris, 122 So. 2d 235 (Fla. 2d DCA 1960); General Hosp. of Greater Miami, Inc. v. Gager, 160 So. 2d 749 (Fla. 3d DCA 1964); Otis Elevator Co. v. Gerstein, 612 So. 2d 659 (Fla.App.1993). Such a ruling is not entitled to the same deference on appeal as the ruling of a presiding judge. See Wolkowsky, 153 Fla. 267, 14 So. 2d 398; Wohlfiel, 122 So. 2d 235. Mr. Cascio argues that a successor judge may rule on pure issues…
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Frazier v. Otis Elevator Co., 645 So. 2d 100 (Fla. 3d DCA 1994)…jack, this evidence should be excluded at the retrial of this cause. Affirmed and remanded. . The trial court below granted the motion for new trial in its capacity as a successor judge pursuant to our decision of Otis Elevator Co. v. Gerstein, 612 So. 2d 659 (Fla. 3d DCA 1993).…
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Celerina Nunez v. Universal Prop. & Cas. Ins. Co., 325 So. 3d 267 (Fla. 3d DCA 2021)…al’s motion for directed verdict was an interlocutory order of which the successor judge had the “authority” and “obligation” to consider and to correct if it was premised on an incorrect interpretation of the law. Otis Elevator Co. v. Gerstein, 612 So. 2d 659, 659-60 (Fla. 3d DCA 1993) (“[A] successor judge has the authority to rule upon a motion for a new trial in a jury case.”); Raymond, James & Assocs., Inc. v. Zumstorchen Inv., Ltd., 488 So. 2d 843, 845 (Fla. 2d DCA 1986) (“[A] successor judge has…
Authorities Cited
- Wolkowsky v. Goodkind, 153 Fla. 267 (Fla. 1943)
- The Gen. Hosp. OF Greater Miami, Inc. v. Gager, 160 So. 2d 749 (Fla. 3d DCA 1964)
- Pessalono v. State, 168 So. 2d 145 (Fla. 1964)
- K.C. v. A.P., 577 So. 2d 669 (Fla. 3d DCA 1991)
- Leibovit v. Garfunkel, 68 Fla. 463 (Fla. 1914)
- State of Fla. ex rel. v. Honorable Thomas G. O'Connell Cnty. Court Judge, 347 So. 2d 442 (Fla. 3d DCA 1977)