RICKIE POTETTI, BY AND THROUGH HIS FATHER AND NEXT FRIEND, LEO POTETTI, AND LEO POTETTI, INDIVIDUALLY, APPELLANTS,
v.
BEN LIL, INC., A FLORIDA CORPORATION AND LAWRENCE BAYER, APPELLEES
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Plaintiffs appealed a jury verdict for defendants in a negligence case, raising eight points for reversal. The appellate court affirmed the judgment, finding that plaintiffs' post-verdict motion was untimely filed and insufficiently argued, and that the trial court properly instructed the jury and refused a last clear chance instruction.
The trial court properly struck the motion because it was served thirteen days after verdict, exceeding the ten-day statutory deadline. Even assuming the motion was timely and proper, it was insufficient because it attempted to test the sufficiency of evidence and challenge evidentiary rulings, which are improper bases for such a motion. The jury instructions were complete, correct, and fairly presented the law, and the refusal to give a last clear chance instruction was proper under the facts.
“A motion for a new trial or for rehearing shall be served not later than ten days after the rendition of verdict or the entry of judgment.”
Establishes the mandatory ten-day filing deadline for motions for new trial under Florida Rules of Civil Procedure, which the plaintiffs' motion violated.
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Join FLexlaw to unlock all legal intelligenceThis was a negligence case in which a jury rendered a verdict in favor of defendants Ben Lil, Inc. and Lawrence Bayer. Plaintiffs filed a combined mot…
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Plaintiffs appeal from a final judgment, after a jury verdict, for the defendants in a negligence case.
Appellants argue, in their brief, eight separate points for reversal on this appeal.
In point one plaintiffs seek reversal because the trial court struck their “motion for judgment notwithstanding the verdict or in the alternative, motion for new trial.” This motion was served on the defendants thirteen days after the verdict was rendered.
R.C.P. 1.530(b), 31 F.S.A., provides:
“Time for Motion. A motion for a new trial or for rehearing shall be served not later than ten days after the rendition of verdict or the entry of judgment. * * * ”
The trial court was, therefore, correct in striking a motion for new trial which was untimely filed. See Kippy Corporation v. Colburn, Fla.1965, 177 So.2d 193; Miami Transit Company v. Ford, Fla.1963, 155 So.2d 360; R.C.P. 1.090(b), 30 F.S.A.
It has been held that a motion for judgment n. o. v. should be made before the entry of the final judgment. Tolliver v. Loftin, 155 Fla. 698, 21 So.2d 359 (1945).
Assuming arguendo, the propriety of a combined motion for judgment n. o. v. and a motion for new trial1 (a matter not argued by the parties) and that the motion for judgment n. o. v. was filed timely, we have considered the motion and find that it was insufficient.2 It was, therefore, properly stricken as it attempted to test the sufficiency of the evidence 3 and to reach errors relating to the exclusion or admission of evidence.4
We have considered the other points for reversal argued by plaintiff and find that they are generally without merit and *272we will not discuss them in detail, except to say that the aggregate charges given by the trial judge appear to be complete and correct and that they fairly presented the law to the jury. See Southeastern General Corporation v. Gorff, Fla.App.1966, 186 So.2d 273; Sinclair Refining Co. v. Butler, Fla.App.1965, 172 So.2d 499; Florida East Coast Railway Company v. Lawler, Fla.App.1963, 151 So.2d 852.
We also find no error, under the facts involved herein, in the refusal of the trial judge to give an instruction on the doctrine of last clear chance. See Bethel Apostolic Temple v. Wiggen, Fla.1967, 200 So.2d 797, and Morse Auto Rentals, Inc. v. Kravitz, Fla.1967, 197 So.2d 817.
The judgment herein appealed is, therefore,
Affirmed.
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Bescar Enters., Inc. v. Rotenberger, 221 So. 2d 801 (Fla. 4th DCA 1969)…dingly the order granting a new trial is reversed and the cause is remanded for reinstatement of the jury verdict and entry of judgment thereon. Reversed and remanded. WALDEN, C. J., and OWEN, J., concur. . Potetti v. Ben Lil, Inc., Fla.App.1968, 213 So. 2d 270. . R.C.P. 2.8(b), 1962, reads: “(b) Time for Motion. A motion for a new trial, or a motion for rehearing in matters heard without a jury or rehearing of any motion for judgment provided for by these rules, shall be served not later than 10 days aft…
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Keyes v. Rymer Realty Corp., 219 So. 2d 711 (Fla. 3d DCA 1969)…Procedure, 31 F.S.A., and no error was committed by the trial judge in failing to consider same. Miami Transit Company v. Ford, Fla.1963, 155 So. 2d 360; Kippy Corporation v. Colburn, Fla.1965, 177 So. 2d 193; Potetti v. Ben Lil, Inc., Fla.App.1968, 213 So. 2d 270. Therefore, for the reasons above stated, the final order of partition and sale here under review be and the same is hereby affirmed. Affirmed. . It was not raised on appeal and we deem it to be merely procedural or, at most, only harmless error…
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Lehmann v. Claude Cloniger and his wife, 294 So. 2d 344 (Fla. 1st DCA 1974)…in this case without the award of compensatory damages we logically conclude that the punitive damage aspect follows the compensatory damages. We have not overlooked the decision of our sister court in Potetti v. Ben Lil, Inc., Fla.App. (3rd) 1968, 213 So. 2d 270: However, it does not appear that in that case the “jury verdict” was based upon a judicial direction nor does it appear that any post-trial motions were filed by either of the parties during the 13 day period intervening between the entry of the ve…
Authorities Cited (12 total)
- The Kippy Corp. v. Sherwood Colburn, 177 So. 2d 193 (Fla. 1965)
- Mills v. State, 58 Fla. 74 (Fla. 1909)
- Smith v. Peninsular Ins. Co., 181 So. 2d 212 (Fla. 1st DCA 1965)
- Sinclair Ref. Co. v. Butler, 172 So. 2d 499 (Fla. 3d DCA 1965)
- Fla. E. Coast Ry. Co. v. Lawler, 151 So. 2d 852 (Fla. 3d DCA 1963)
- Miami Transit Co. v. Ford, 155 So. 2d 360 (Fla. 1963)
- Bethel Apostolic Temple v. Wiggen, 200 So. 2d 797 (Fla. 1967)
- Okeechobee Co. v. Norton, 149 Fla. 651 (Fla. 1942)
- Morse Auto Rentals, Inc. v. Kravitz, 197 So. 2d 817 (Fla. 1967)
- Se. Gen. Corp. v. Gorff, 186 So. 2d 273 (Fla. 2d DCA 1966)