KIMBERLY MANN AND MARVIN MANN, APPELLANTS,
v.
MICHAEL BRANTLEY, APPELLEE
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The denial of a stay of a new trial pending appeal of the order granting the new trial was an abuse of discretion.
After a jury verdict for defendants, the trial court granted plaintiffs motion for a new trial due to defense counsel's improper question. Defendants …
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KLEIN, J.
After a jury verdict in favor of the defendants, the court granted plaintiffs motion for new trial because it concluded that defense counsel’s question to plaintiff about conversations between plaintiff and his prior lawyer was “improper and highly prejudicial After the defendants filed their notice of appeal, they moved for a stay of the new trial, which the trial court denied. Defendants seek review of the order denying the stay.
An order granting a new trial is a non-final order which is reviewable under Florida Rule of Appellate Procedure 9.130(a)(4). Because appeals of orders granting new trials generally require review of the trial transcript, or portions thereof, the method for reviewing such orders is the same as the method for reviewing final judgments. Fla.R.App.P. 9.110(a)(4). The fact that an order granting a new trial is appealed by the same method as a final judgment, however, does not alter the fact that it is a non-final order reviewable under the authority of rule 9.130, which provides in subsection (f):
Stay of Proceedings. In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the loiver tribunal may not render a final order disposing of the cause pending such review, [emphasis added]
Considering the fact that the trial court cannot enter a final judgment following a new trial while the order granting new trial is on appeal, along with the fact that a new trial would be a waste of money and judicial resources if the appellate court reverses the order granting the new trial, the denial of a stay here was an abuse of discretion. We therefore reverse and grant a stay pending appeal.
GROSS and TAYLOR, JJ., concur.