SPENCER MEANS, SR., APPELLANT,
v.
LESLIE EUGENE DOUGLAS, APPELLEE
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A plaintiff won a jury verdict in a personal injury case arising from a bicycle-truck collision, but the trial judge granted defendant a new trial limited to the damages issue while denying it on liability. The appellate court reversed the new trial order on damages because it failed to specify the grounds for granting it, and remanded for entry of judgment on the jury verdict.
The trial court's order granting a new trial on damages was set aside because it failed to state the particular grounds on which the motion was granted, as required by statute and court rules. The order was reversed and the case was remanded with directions to enter judgment for the plaintiff on the jury verdict.
“the correctness of an order of the trial court denying a motion for new trial can only be assigned upon an appeal from the final judgment”
Establishes the general appellate rule that orders denying new trials are not directly appealable; defendant-appellant must follow statutory exception or wait for final judgment
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Join FLexlaw to unlock all legal intelligenceSpencer Means, Sr., brought an action for personal injuries after his bicycle was struck by Leslie Eugene Douglas's truck. A jury rendered a verdict i…
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This appeal arises out of an order of the trial judge granting to the defendant a new trial as to damages only. The plaintiff was awarded a jury verdict in an action brought for personal injuries received when his bicycle was struck by defendant’s truck. Defendant moved for a new trial and plaintiff moved for final judgment and costs. The court entered the following order:
“This cause coming on to he heard before me this 7th day of January, 1958, at the hour of 11:00 a. m. in Chambers at Daytona Beach, Florida, the Court having heard the argument of counsel for the respective parties and being otherwise fully advised in the premises and the Court being of the opinion that the Defendant’s Motion for a New Trial with regards to question of negligence ought to be denied but that the Defendant’s Motion for a New Trial with regard to the question of damages is well taken, then it hereby
“Ordered, Adjudged and Decreed:
“1. That the Defendant’s Motion for a new trial with respect to the question of negligence be and the same is hereby denied.
“2. That the Defendant’s Motion for a new trial with respect to damages be and the same is hereby granted.
“It is further
“Ordered, Adjudged and Decreed that the Plaintiff’s motion for taxation of costs, and Final Judgment on the question of negligence of the Defendant be and the same is hereby sustained and on the question of damages and costs incurred by the Plaintiff incident to the trial be and the same is hereby denied.”
The defendant filed a notice of appeal and assigned as error that portion of the court’s order which denied his motion for new trial on all the issues involved. The plaintiff as cross-appellant filed a notice of appeal and assigned as error that portion of the court’s order which granted defendant’s motion for a new trial on the issue of damages.
Since the notice of appeal filed by the defendant-appellant is directed to the above quoted order it is necessary, first, to determine whether it is a final judgment. Insofar as the defendant was concerned it was not, because it determined only the issue of liability, thus leaving further judicial labor for the court. See Slatcoff v. Dezen, Fla.1954, 72 So.2d 800 and cases cited therein.
Therefore, if the defendant-appellant is to appeal he must find his authority under § 59.04 Fla.Stat., F.S.A., which grants the right of appeal, under certain conditions from an order granting a new trial. But the correctness of an order of the trial court denying a motion for new trial can only be assigned upon an appeal from the final judgment. Koch v. State Road Department of Florida, Fla.1958, 106 So.2d 426 and authority therein cited.
The plaintiff-cross-appellant had authority to appeal the above quoted order under § 59.04 Fla.Stat., F.S.A., because he is the aggrieved party upon the entry of the order granting a new trial. His right to appeal is conferred by a specific statute, which creates an exception to the general rule that appeals at law lie only from final judgments.
Further, the order granting the new trial upon the issue of damages must be set aside because the order fails to indicate the particular ground or grounds upon which the motion was granted, as required by § 59.07(4) Fla.Stat., F.S.A., and Rules 2.6(d) and 2.8(c), Florida Rules of Civil Procedure, 31 F.S.A. Booker v. Saunders Realty Co., Fla.1951, 53 So.2d 912; Eber*90sole v. Tepperman, Fla. 1953, 65 So.2d 564; cf. Kent v. Tallahassee Motor Co., 141 Fla. 789, 193 So. 821.
For the reasons set forth the appeal of Spencer Means, Sr., defendant in the trial court, is dismissed, sua sponte, and upon the cross appeal of Leslie Eugene Douglas, plaintiff in the trial court, the order granting to the defendant a new trial with respect to damages is set aside. This cause is remanded with directions to enter judgment for the plaintiff upon the verdict of the jury.
Reversed and remanded.
WIGGINTON, Acting Chief Judge, and CROSBY, HAROLD, Associate Judge, concur.
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Citator
Cited By (17 total)
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Lehman v. Spencer Ladd's, Inc., 182 So. 2d 402 (Fla. 1965)…expiration of ten days following its rendition. The cross-petitioner Ladd is correct. The omission of the ground therefor in an order granting new trial has been repeatedly held to be basis for reversing such orders. Means v. Douglas, Fla.App.1959, 110 So. 2d 88; Fulton v. Poston Bridge & Iron, Inc., Fla.App.1960, 122 So. 2d 240; Morton v. Staples, et al., Fla.App.1962, 141 So. 2d 806; Hammett v. Lyte Line, Inc., Fla. 1963, 150 So. 2d 235. Certainly, if the omission of the required ground for new trial was…
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Clement v. Aztec Sales, Inc., 297 So. 2d 1 (Fla. 1974)…onsidered this case, together with other case authority construing Fla.Stat. § 59.04, F.S.A., including Marley v. Saunders, 249 So. 2d 30 (Fla.1971); Seigel v. Solomon, 201 So. 2d 501 (Fla.App.3d, 1967), affirmed 207 So. 2d 79; and Means v. Douglas, 110 So. 2d 88 (Fla.App.1st, 1959). This Court has approved the holding that an order granting a new trial is a substantive right given by Fla.Stat. § 59.04, F.S.A., and is not interlocutory in nature. Seigel v. Solomon, supra. Further, it has been held that Fla.S…
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Fulton v. Poston Bridge & Iron, Inc., 122 So. 2d 240 (Fla. 3d DCA 1960)…al of the order granting the new trial, on authority of Kent v. Tallahassee Motor Co., 141 Fla. 789, 193 So. 821; Booker v. Saunders Realty Co., Fla.1951, 53 So. 2d 912; Ebersole v. Tepperman, Fla.1953, 65 So. 2d 564; Means v. Douglas, Fla.App.1959, 110 So. 2d 88. However, almost a month after the appeal was taken, and more than two weeks after the limited nature of the appeal had been set by the appellants’ assignment of error and directions to the clerk, the trial court, acting on plaintiffs’ motion, ente…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Slatcoff v. Dezen, 72 So. 2d 800 (Fla. 1954)
- Kent v. Tallahassee Motor Co., 141 Fla. 789 (Fla. 1940)
- State ex rel. Peterman v. Adams, 65 So. 2d 564 (Fla. 1953)
- Koch v. State Rd. Dep't OF Fla., 106 So. 2d 426 (Fla. 1958)