CHARLES GORDON LEE, APPELLANT,
v.
JOHN H. ELLIOTT AND CLEMENTINE ELLIOTT, HIS WIFE, APPELLEES
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In this automobile accident case, the defendant prevailed at trial, but the trial court granted a new trial based on a plaintiff's motion for rehearing filed 38 days after denying the original motion for new trial. The appellate court reversed, holding that the trial court lacked authority to entertain the late motion for rehearing and that procedural rules imposed a 10-day time limit on such motions.
The court held that the trial court committed error in entering the order granting a new trial. The applicable rules of procedure made no provision for a motion for rehearing in a law action of an order denying a motion for new trial, and assuming such a motion could be entertained, it would be subject to the 10-day time limit imposed on authorized motions for rehearing under the rules of civil procedure.
“The plaintiff's motion for new trial had been considered and denied. The subsequent order granting a new trial was not entered on the court's own initiative, nor could it have been at that late date.”
Establishes that the trial court lacked authority to grant a new trial after the original motion had been denied and after the 10-day period had expired.
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Join FLexlaw to unlock all legal intelligenceAn automobile accident case went to jury trial, resulting in a verdict for the defendant. One of the two plaintiffs (John Elliott) filed a timely moti…
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The appellant, who was the defendant below, appeals from an order granting a new *170trial in an automobile accident case, following a jury trial which resulted in a verdict for the defendant.
One of the two plaintiffs filed a motion for new trial, which the court denied. Thirty-eight days later that plaintiff moved for rehearing of the order denying his motion for new trial. The trial court granted the motion for rehearing, vacated the final judgment and ordered a new trial. The appellant contends (1) that the court committed error in entertaining the motion for rehearing and (2) that the court erred in granting a new trial on the ground assigned which, in substance, was that the jury had failed to follow the court’s instructions and the applicable law. We do not reach a consideration of the merits of the ground for the order because we reverse on the basis of the appellant’s first contention.
The procedural steps after the verdict, which was dated April 26, 1962, were as follows: On May 2, within the time allowed (rule 2.8 F.R.C.P. 31 F.S.A.), the plaintiff John Elliott filed a motion for new trial. On June 8 there were filed the order denying the motion for new trial and the final judgment for the defendant. On July 5 the plaintiff John Elliott appealed. On July 10 the appellate court dismissed the appeal, on Elliott’s motion. On July 16 the plaintiff John Elliott filed his motion for rehearing of the order of June 8 denying his motion for new trial. And on July 20 his motion for rehearing was granted and a new trial ordered.
We hold that in entering the order appealed from the learned trial judge committed error. The plaintiff’s motion for new trial had been considered and denied. The subsequent order granting a new trial was not entered on the court’s own initiative, nor could it have been at that late date.1 The applicable rules of procedure made no provision for a motion for rehearing in a law action of an order denying a motion for new trial. Assuming, however, that a timely motion for rehearing of such an order in a law action could be accepted and acted on by the trial court (cf. Floyd v. State ex rel. LaVigne Electric Co., Fla. 1962, 139 So.2d 873),2 it does not follow that the time for such motion would be unlimited. Here the motion for rehearing was served and filed 38 days after the order denying motion for new trial to which it was directed. It would be anomalous to hold that the 10-day time limit, imposed on motions for rehearing which are authorized by the rules of civil procedure, has no application to an uninvited motion for rehearing. See rules 2.8 and 3.16, F.R.C.P.
The order appealed from is reversed and the cause remanded with directions to reinstate the judgment for defendant.
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Shelby Mut. Ins. Co. OF Shelby v. Tillman Pearson, 236 So. 2d 1 (Fla. 1970)…or amend the judgment shall be served not later than ten days after entry of the judgment except that this rule does not affect the remedies in Rule 1.540(b).” [Emphasis added.] . Kippy Corp. v. Colburn, 177 So. 2d 193 (Fla.1965) ; Lee v. Elliott, 155 So. 2d 169 (3rd Dist.Ct.App.Fla.1963); and State ex rel. Huntley Bros., Inc. v. Gooding, 149 So. 2d 55 (1st Dist.Ct.App.Fla. 1963). See also Kaufman v. Sweet et al. Corp., 144 So. 2d 515 (3rd Dist.Ct.App.Fla.1962), cert. denied, 156 So. 2d 846 (Fla.1963) ; and…
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Volumes IN Value, Inc. v. BUY Mail Int'l, Inc., 177 So. 2d 511 (Fla. 3d DCA 1965)…ected to proceed in a procedurally unauthorized manner, we have no alternative but that of reversing the order appealed with directions to reinstate the judgment entered on the jury verdict. Reversed with directions. . Lee v. Elliot, Fla.App.1963, 155 So. 2d 169 at 170; see also Mathes v. Butler, Fla.App.1961, 128 So. 2d 142.…
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DePADRO v. Moore, 215 So. 2d 27 (Fla. 4th DCA 1968)…otion, the court has no authority to entertain or consider a subsequently filed motion or petition for rehearing which merely asks the court to reconsider the same matter. Mathis v. Butler, Fla.App.1961, 128 So. 2d 142; Lee v. Elliott, Fla.App.1963, 155 So. 2d 169; Volumes in Value, Inc. v. Buy Mail International, Inc., Fla.App.1965, 177 So. 2d 511. In the instant case, however, the record adequately establishes that the order denying plaintiffs’ motion for new trial was not a denial based upon the merits, bu…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Florida Appellate Rules, 139 So. 2d 873 (Fla. 1962)
- Floyd v. State of Fla. ex rel. LA Vigne Elec. Co., 139 So. 2d 873 (Fla. 1962)