JARRELL V. HUFFMAN ET AL., APPELLANTS,
v.
NEAL LITTLE AND LUMBERMENS MUTUAL INSURANCE COMPANY, A CORPORATION, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Plaintiffs appealed after a trial judge sua sponte set aside his own order granting a new trial and reinstated the jury's verdict for defendants. The court held that an order granting a new trial confers a substantive right and is not subject to modification by the judge, even sua sponte, outside the narrow time limits of Florida Rule of Civil Procedure 1.530(d).
No. The court held that an order granting a new trial confers a substantive right and is not interlocutory, therefore it is not subject to modification by the trial court outside the ten-day period after entry of judgment or while a timely motion for rehearing or new trial is pending under Rule 1.530(d). The trial court lacked authority to set aside its previous order granting the new trial.
[1] An order granting a new trial confers a substantive right and is not interlocutory, thus it is not subject to modification by the court.
[2] In the absence of fraud or clerical error, a trial court cannot grant a motion for rehearing after a motion for a new trial has been determined.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An order granting a new trial confers a substantive right and the order is not interlocutory in nature.”
Establishes the fundamental principle that orders granting new trials are not subject to the modification rules applicable to interlocutory orders
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiffs' daughter was injured in an accident allegedly caused by a defendant child bicyclist. A jury returned a verdict for defendants on November …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Sua Sponte Reconsideration cases and more on FLexlaw
SCHEB, Judge.
Upon motion of appellants, plaintiffs below, the trial court awarded a new trial. Thereafter, the trial judge, sua sponte, re considered his actions and set aside his order and reinstated the judgment in favor of defendants. Plaintiffs appeal, contending the trial judge was without jurisdiction to recall the order granting a new trial. We agree and reverse.
Plaintiffs’ young daughter was injured in an accident they claim was caused by the negligence of the defendant child bicyclist. Plaintiffs sought damages against the defendants for their daughter’s injuries. On November 7, 1975, the jury returned a verdict in favor of defendants and final judgment thereon was rendered November 19, 1975.
On timely motion of the plaintiffs, the trial court, on December 12 (filed December 15), entered an order granting plaintiffs a new trial. Subsequently, upon his own motion, the trial judge noticed counsel for the respective parties that he intended to reconsider his order granting the new trial. On January 2, 1976 (filed January 9), the trial court entered an order setting aside the order previously entered awarding the new trial.
An order granting a new trial confers a substantive right and the order is not interlocutory in nature. Hoffman v. Jackson’s Minit Markets, Inc., 313 So. 2d 722 (Fla.1975). Therefore, unlike interlocutory orders it does not remain subject to modification. Cf. Sterling Drug, Inc. v. Wright, 307 So. 2d 494 (Fla. 2d DCA 1975). In fact, in the absence of fraud or clerical error, once the motion for a new trial is determined it is not even subject to a motion for rehearing. State v. Burton, 314 So. 2d 136 (Fla.1975); Mathis v. Butler, 128 So. 2d 142 (Fla. 2d DCA 1961); DePadro v. Moore, 215 So. 2d 27 (Fla. 4th DCA 1968). As to effect of motion for new trial or rehearing, see generally, Trawick's Florida Practice and Procedure, 1975, Section 26-1.
Appellant contends that this case is controlled by the provisions of Fla.R.Civ.P. 1.530, which in Subsection (d) provides:
“On Initiative of Court. Not later than ten days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.”
Appellant’s position is that the time for sua sponte reconsideration of the order granting new trial is governed by the time periods of Subsection (d). However, in the present case, the court’s actions were not within ten days after entry of judgment or within the time of ruling on the timely motion for new trial. It is unnecessary to reach the question whether this subsection grants the judge a limited time period in which he may reconsider an order granting a new trial. We are unaware of any other rule which permits such a reconsideration.
Having determined that the trial court was without authority to modify its previous order granting a new trial,1 it is unnecessary for us to pass on the remaining points urged by plaintiffs as grounds for reversal.
Accordingly, the trial court’s order 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 judge had such authority before the appeal time had passed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Frazier v. Seaboard Sys. R.R., Inc., 508 So. 2d 345 (Fla. 1987)…der was “authorized” under Rule 9.020(g) and not disposed of until January 9, 1986, making his appeal on February 7, 1986, timely. We disagree. Although petitioner recognizes that a new-trial order is not interlocutory in nature, Huffman v. Little, 341 So. 2d 268, 269 (Fla. 2d DCA), cert. denied, 348 So. 2d 949 (Fla.1977), he argues that Bowen v. Willard, 340 So. 2d 110 (Fla.1976), supports the proposition that it is not a “final order” either. Petitioner directs our attention to the following language from…1 / 2
-
Thompson v. Crawford, 479 So. 2d 169 (Fla. 3d DCA 1985)…found in DeClaire, we note that DeClaire involved an attack on a final judgment and not an attack on a post-judgment order. Although an order granting a new trial confers a substantive right and is not interlocutory in nature, see Huffman v. Little, 341 So. 2d 268 (Fla. 2d DCA 1977) (in the absence of fraud or clerical error, once motion for new trial is determined, it does not remain subject to modification); see also Salkay v. State Farm Mutual Automobile Co., 398 So. 2d 916 (Fla. 3d DCA) (same), rev. denie…
-
Salkay v. State Farm Mut. Auto. INS. Co., 398 So. 2d 916 (Fla. 3d DCA 1981)…original entry of the remittitur was error. An order granting remittitur or, in the alternative, a new trial confers a substantive right. It is not interlocutory in nature and, therefore, does not remain subject to modification. Huffman v. Little, 341 So. 2d 268 (Fla. 2d DCA 1977). In the absence of fraud or clerical error, once the motion for a new trial is granted it is not even subject to a motion for rehearing. State v. Burton, 314 So. 2d 136 (Fla.1975); Huffman, supra; DePadro v. Moore, 215 So. 2d 27 (…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Ollis Burton, 314 So. 2d 136 (Fla. 1975)
- DePADRO v. Moore, 215 So. 2d 27 (Fla. 4th DCA 1968)
- Nita Mathis v. Butler, 128 So. 2d 142 (Fla. 2d DCA 1961)
- Sterling Drug, Inc. v. Wright, 307 So. 2d 494 (Fla. 2d DCA 1975)
- McCAIN v. Select Comm. on Impeachment, 313 So. 2d 722 (Fla. 1975)
- Flood v. Ware, 326 So. 2d 46 (Fla. 2d DCA 1976)