WILLIAM FLOOD, APPELLANT,
v.
FRED W. WARE AND WARE PLUMBING, INC., A FLORIDA CORPORATION, APPELLEES
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William Flood appealed a trial court's order denying a new trial after a jury verdict in his favor. The appellate court held that when a party fails to appeal an order granting a new trial, that order becomes the law of the case and cannot be reversed by a successor judge, and therefore remanded for the new trial to proceed.
When a party fails to appeal an order granting a new trial, that order becomes the law of the case and cannot be reversed by a successor judge. The successor judge lacked authority to enter judgment reversing the new trial order.
[1] An order granting a new trial becomes the law of the case when the aggrieved party fails to appeal that order.
[2] A successor judge lacks the authority to enter a judgment that reverses a prior order granting a new trial when the aggrieved party did not appeal the new trial order.
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Join FLexlaw to unlock all legal intelligence“when the appellees failed to appeal the order granting new trial, this order became the law of the case”
Establishes the central holding that failure to appeal a new trial order makes it binding law of the case
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Join FLexlaw to unlock all legal intelligenceFlood sued Ware and Ware Plumbing, Inc. for intentional interference with a business relationship with his landlord Jordan. At trial, the court grante…
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PER CURIAM.
Appellant, William Flood, filed his complaint against Walter R. Jordan, Fred W. Ware and Ware Plumbing, Inc., alleging therein, among other things, intentional interference by Fred W. Ware and Ware Plumbing, Inc. with a business or contractual relationship, i. e., a rental agreement between appellant and Walter R. Jordan. The complaint further alleged a refusal on the part of Walter R. Jordan to exercise his duty as landlord to insure appellant’s peaceful possession of the premises. Appellant sought both compensatory and punitive damages. Appel-lees having filed appropriate responses to the complaint, the case proceeded to trial before a jury.
At the conclusion of appellant’s case the trial court granted a motion for directed verdict in favor of Jordan and he was dismissed from the case. The trial court also granted a motion for directed verdict in favor of Fred W. Ware and Ware Plumbing, Inc. on Count II (invasion of privacy) and Count III (intentional infliction of severe emotional distress) of the complaint. The court reminded counsel for the parties that Count I (restraint of trade) had been stricken by the court at the pretrial conference. The case then was presented to the jury on Count IV (intentional interference with a business or contractual relationship) and Count V (trespass).
The jury returned its verdict against appellees, Fred W. Ware and Ware Plumbing, Inc., jointly awarding compensatory damages in the amount of $40,000 and punitive damages in the amount of $10,000 in favor of appellant. Subsequently, appellees filed their motion for new trial, and motion for judgment in accordance with motion for directed verdict. After hearing, the trial judge, the Honorable David Seth Walker, entered an order dated June 17, 1974, denying the motion for judgment in accordance with the motion for directed verdict, but granted appellees a new trial. No appeal was taken from this order. Approximately 90 days later appellant filed his motion to set the case for jury trial. Thereafter, on October 14, appellees filed their motion for reconsideration of motion for judgment in accordance with motion for directed verdict and motion for judgment notwithstanding verdict. The hearing on appellees’ motions was 'held before Circuit Judge B.
J. Driver, the successor judge. After hearing, an order was entered by Judge Driver, on December 11, granting said motions, which had the effect of reversing Judge Walker’s order granting a new trial. Appellant filed this appeal from the order entered on December 11, by Judge Driver. In Clement v. Aztec Sales, Inc., Fla. 1974, 297 So. 2d 1, the Supreme Court held that an appeal from an order granting a new trial pursuant to Fla.Stat. § 59.04 (1973) was not interlocutory. If such an appeal is not interlocutory, it would seem to be final, though admittedly it occurs prior to final judgment. In spite of the fact that the wording of Fla.Stat. § 59.04 suggests that the right to appeal from an order granting new trial prior to final judgment may be discretionary, we have found no appeal taken after final judgment in which the losing party urged that the case be reversed because the court had erroneously granted the new trial which ultimately resulted in the adverse judgment. If for no other reason, to require a party who is aggrieved by the granting of a new trial to appeal from that order or forever hold his peace would certainly have the effect of saving judicial labor.
Hence, we have concluded that when the appellees failed to appeal the order granting new trial, this order became the law of the case.
Therefore, even though we can appreciate why Judge Driver felt that certain findings in Judge Walker’s order granting a new trial were such as would dictate the entry of a judgment for the appellees and irrespective of whether it is ever appropriate for a successor judge to set aside a new trial order entered by the judge who tried the case, we hold that Judge Driver had no authority to enter a judgment which had the effect of reversing the order which granted a new trial.
For the reasons above stated, Judge Driver’s order is hereby quashed and the cause remanded with directions to reinstate Judge Walker’s order of June 17, 1974, for a new trial on all issues, liability and damages, both compensatory and punitive that were presented to the jury.
BOARDMAN, Acting C. J., and GRIMES and SCHEB, JJ., concur.
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Jarrell v. Huffman, 341 So. 2d 268 (Fla. 2d DCA 1977)…r setting aside the previous order granting a new trial and reinstating the final judgment in favor of defendants is vacated and the cause is remanded to the trial court for a new trial. BOARDMAN, C. J., and HOBSON, J., concur. . In Flood v. Ware, 326 So. 2d 46 (Fla.2d DCA 1976), we held that after the appeal time had passed, a judge had no authority to reverse an order by a previous judge awarding a new trial. We were not called upon to decide the question presented in the present case, whether the same j…
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Wroton v. Wash-Bowl, Inc., 456 So. 2d 967 (Fla. 2d DCA 1984)…443 So. 2d 398 (Fla. 4th DCA 1984). See Airvac, Inc. v. Ranger Insurance Co., 330 So. 2d 467 (Fla.1976); Alford v. Summerlin, 423 So. 2d 482 (Fla. 1st DCA 1982); Marine Midland Bank Central v. Cote, 384 So. 2d 658 (Fla. 5th DCA 1980); Flood v. Ware, 326 So. 2d 46 (Fla. 2d DCA 1976); and Howell v. Howell, 207 So. 2d 507 (Fla. 2d DCA 1968). The judgment is AFFIRMED. HOBSON, A.C.J., and DANAHY and LE-HAN, JJ., concur.…
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Polk Cnty. v. Sofka, 730 So. 2d 389 (Fla. 2d DCA 1999)…). An order granting new trial is final to the extent that the order cannot be vacated or over-toned except in accordance with Florida Rules of Civil Procedure 1.540 and 1.530. See Huffman v. Little, 341 So. 2d 268 (Fla. 2d DCA 1977); Flood v. Ware, 326 So. 2d 46 (Fla. 2d DCA 1976). Thus the action of the tidal court in vacating the 1993 order granting a new trial was unauthorized. The trial court was not reconsidering that order based on a change in the law or on a motion filed by the party who had benefitt…
Authorities Cited
- Clement v. Aztec Sales, Inc., 297 So. 2d 1 (Fla. 1974)