ARCHER-DANIELS-MIDLAND COMPANY, A DELAWARE CORPORATION, APPELLANT,
v.
A & P BAKERY SUPPLY AND EQUIPMENT COMPANY, A FLORIDA CORPORATION, APPELLEE

Fla. 3d DCA | 1970-10-06
No. 70-42
Before PEARSON, C. J., and CHARLES CARROLL and SWANN, JJ.
240 So. 2d 73 Florida District Court of Appeal, Third District (1970) Negative Treatment
Cited by 8 cases

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Synopsis

Archer-Daniels-Midland Company appeals from an order granting A & P Bakery Supply a new trial. The trial court granted the new trial based on its conclusion that it had erred in denying plaintiff's oral motion for continuance on the day of trial, but the appellate court reverses, finding that the original denial of the continuance motion was proper under Florida rules.


Holding

The appellate court reverses the order granting a new trial. The trial court erred in concluding that it had committed error when denying the continuance motion. An oral motion for continuance that states only that counsel misunderstood the trial date does not meet the requirements of Florida Rule 1.460(b), which requires a written motion stating fully and clearly all facts entitling the movant to a continuance. The original denial of the continuance was therefore correct, and the new trial should not have been granted.


Headnotes

[1] A motion for continuance must be in writing and state fully and clearly all facts entitling the movant to a continuance.

[2] A trial court's order granting a new trial based on its own prior ruling is reversible if the prior ruling was correct.

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Key Quotes

“Rule 1.460(b), RCP, 30 F.S.A., not only requires that the motion be in writing but requires that "[i]t shall state fully and clearly all of the facts which the movant conceives may entitle him to a continuance."”

Establishes the formal requirements for a valid continuance motion under Florida law

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Facts & Procedural History

The case was set for jury trial on October 6, 1969. On that date, plaintiff's counsel orally moved for a continuance, stating he had misunderstood tha…

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Opinion of the Court
PEARSON, Chief Judge.

PEARSON, Chief Judge.

The defendant counter-plaintiff, Archer-Daniels-Midland Co., appeals from an order granting the plaintiff counter-defendant, A & P Bakery Supply and Equipment Co., a new trial. We reverse.

After numerous delays the circuit court on April 8, 1969, set the cause for jury trial during the two week period beginning September 15, 1969. On September 9, 1969, counsel for both parties jointly filed a motion for continuance. The court denied the motion the same day. On September 26, 1969, the court granted plaintiff’s oral motion for continuance because the father of plaintiff’s counsel was ill. Thereafter the cause was set for jury trial during the week of October 6, 1969. On October 6 both lawyers appeared in court. Plaintiff’s counsel orally moved for a continuance on the ground that he had not understood that the case would be tried that day; he had *74understood “that there was to be just a calendar call here.” The oral motion was denied. A jury was empanelled. Only one witness testified for the plaintiff: its president. The court granted defendant’s motion for directed verdict at the close of plaintiff’s case. Defendant then presented its evidence on the counterclaim. The court directed a verdict in defendant’s favor. Two judgments were filed on October 8, one dismissed plaintiff’s complaint, the other entered judgment for defendant on its counterclaim.

On October 16 the plaintiff filed a motion for a new trial. Although the motion contains four numbered paragraphs the sole ground, in substance, upon which the motion was based was a claimed lack of sufficient evidence to support the directed verdicts. On December 1 at the hearing on the motion for a new trial, plaintiff presented a written motion to amend the motion for new trial by adding a new ground: “5. This court erred in denying the Motion of Plaintiff for a continuance of the trial herein.” The motion to amend went on to state that the amendment was necessary because the new ground alleged “was inadvertently omitted from the motion dated October 15, 1969.” Over objection, the court granted the motion to amend. On December 10 the court entered an order granting a new trial, setting forth the ground for the new trial as follows:

“ * * * it appearing to the Court that an application for continuance was timely made by the said Plaintiff (Counter-Defendant), and the Court having reviewed the facts of such application and -the circumstances existing at that time, and having further considered the facts presented by counsel for the said Plaintiff (Counter-Defendant), and having further considered the matters and things as set forth in the Memorandum in Support of Motion for New Trial and the law applicable thereto, and the Court having heard argument of counsel for each of the parties and being otherwise fully advised in the premises, and it appearing that the circumstances of this case brings this matter within the Rule as adopted by the Supreme Court of the State of Florida in the case of Courtney v. Central Trust Co. [112 Fla. 298], 150 So. 276; Western Union Telegraph Co. v. Suit [153 Fla. 490], 15 So.2d 33, and this Court finding that the true administration of justice would best be served by the granting of a new trial to the Plaintiff (Counter-Defendant), and the setting aside of the Judgments rendered in favor of the Defendant (Counter-Plaintiff) * *

We begin our discussion of the law applicable to this appeal with a reminder that we are limited in our review to. a consideration of the single ground specified by the trial judge. See § 59.07(4), Fla. Stat., F.S.A., and, e. g., Gatlin v. Jacobs Construction Co., Fla.App.1969, 218 So.2d 188. This means that the order under review must be affirmed if the assigned ground is correct, that is, if the trial court did in fact commit error when it denied plaintiff’s oral motion for continuance on October 6, 1969, the day the cause came on for trial. As we noted above this ground was not included in the original written motion for a new trial, but the amendment of a motion for new trial is allowed by Rule 1.530(b), RCP, 31 F.S.A.

The appellant urges that the order granting the new trial must be reversed because the record does not support the trial court’s conclusion that it committed error when it denied the motion for continuance. The appellee relies for affirmance upon the proposition that an order granting a new trial is entitled to great weight upon appeal and will not be disturbed absent a showing of a clear abuse of discretion. See cases cited in Heggie v. Leonard Brothers Transfer, Inc., Fla.App.1966, 191 So.2d 581. In the instant case the trial court denied the motion for continuance and then determined later that its exercise of discretion was against the established law upon the subject. The court determined that the initial ruling on the motion for continuance *75was error because of the law set forth in Courtney v. Central Trust Co., 112 Fla. 298, 150 So. 276 (1933), and Western Union Telegraph Co. v. Suit, 153 Fla. 490, 15 So.2d 33 (1943). In the Courtney decision the Supreme Court held that a continuance of trial was improperly denied where a written motion for a continuance had been made and where the facts presented by the record showed that by reason of his wife’s illness defendant’s attorney had not been able to prepare defendant’s case and that the attorney, because of worry over his wife’s condition, was not in a mental condition to enable him to properly conduct his client’s case. In the Western Union decision the Supreme Court held that .it was improper for a trial judge to proceed to trial where he was informed that the absence of the defendant and its attorney was due to the actual illness of counsel, and defendant had no knowledge of this fact or notice of the case.

We think the trial court in the instant case mistakenly found that these cases established that it had erroneously denied appellee’s motion for a continuance. In the instant case the motion for continuance was not in writing. Rule 1.460(b), RCP, 30 F.S.A., not only requires that the motion be in writing but requires that “[i]t shall state fully and clearly all of the facts which the movant conceives may entitle him to a continuance.” In counsel’s oral statement to the court requesting a continuance1 the only clearly stated ground for continuance is that counsel had misunderstood the date set for the trial. The statement in support of the motion for continuance falls far short of setting forth facts which bring this case within the purview of the rule announced in the two cases cited. Therefore the trial court mistakenly ruled that it had committed error when it denied the motion for continuance.

Appellate courts are reluctant to reverse orders granting new trials. Nevertheless, as pointed out in Nunberg v. Brodsky, Fla.App.1969, 224 So.2d 727, there is a difference between cases in which the trial court grants a new trial because of a finding that the verdict is against the manifest weight of the evidence and those cases in which the trial court finds that it must grant a new trial because of an error it considers it has made. In the first instance the trial court is acting upon an evidentiary question, in the second, the question is one of law. The function of a motion for new trial where a party claims it was aggrieved by the rulings of the trial court is to furnish an opportunity for the trial court to correct its own errors, if any. Kahn v. Delaware Securities Corporation, 114 Fla. 32, 153 So. 308 (1934). Implicit in this rule is the rule that a new trial should not be granted on the basis of a ruling which was free from error. See: Nunberg v. Brod*76sky, above; National Western Life Insurance Co. v. Walters, Fla.App.1968, 216 So.2d 485.

Since the original ruling denying the motion for continuance was correct, the order granting the new trial was incorrect. It is therefore reversed, and the cause is remanded to the trial court with directions to reinstate the verdicts and enter judgment thereon.

Reversed and remanded with directions.


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Citator

Cited By

  • Malone v. Division of Administration, 438 So. 2d 857 (Fla. 3d DCA 1983)
    …rial to the issue of moving expenses. See Allred v. Chittenden Pool Supply, Inc., 298 So. 2d 361 (Fla.1974); Braddock v. Seaboard Air Line Railroad Co., 80 So. 2d 662 (Fla.1955); Archer-Daniels-Midland Co. v. A. & P. Bakery Supply and Equipment Co., 240 So. 2d 73 (Fla. 3d DCA 1970); cert. denied, 244 So. 2d 432 (Fla.1971). Thus, we direct this cost item to be submitted to the jury upon retrial, confident that our previously-discussed limitation upon the moving expense award will prevent any overcompensation.…
  • …PER CURIAM. Relator’s suggestion for writ of prohibition set forth that after this court issued its opinion and mandate in Archer-Daniels-Midland Co. v. A & P Bakery Supply and Equipment Co., Fla.App.1970, 240 So. 2d 73, the trial judge first entered final judgment in accordance with the mandate and then entered an order granting relief from that judgment. The order granting relief from the judgment was entered upon a motion for- relief pursuant to RCP 1.540, 31 F.…
  • Ins. Co. OF N. Am. v. Justo and Irma Valdes, 311 So. 2d 816 (Fla. 3d DCA 1975)
    …Fontainebleau Hotel Company v. Postal, Fla.App.1962, 142 So. 2d 299; Morse Auto Rentals, Inc. v. Dunes Enterprises, Inc., Fla.App.1967, 198 So. 2d 652; Archer-Daniels-Midland Company v. A & [*817] P Bakery Supply and Equipment Company, Fla.App.1970, 240 So. 2d 73; All Ways Reliable Building Maintenance, Inc. v. Moore, Fla.1972, 261 So. 2d 131; Central National Insurance Company v. Gonzalez, Fla.App. 1974, 295 So. 2d 694; Rule 1.460, RCP.…

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