6551 Collins Ave. Corp. v. Millen

• Decision Date: 11 July 1958
• Citation: 104 So.2d 337
• Parties: 6551 COLLINS AVENUE CORP., a Florida corporation, doing business as Monte Cario Hotel, Petitioner, v. Beverlee MILLEN, a single woman, Respondent.
• Court: Florida Supreme Court

Page 337

104 So.2d 337

6551 COLLINS AVENUE CORP., a Florida corporation, doing business as Monte Cario Hotel, Petitioner, v. Beverlee MILLEN, a single woman, Respondent.

Supreme Court of Florida.

July 11, 1958.

Rehearing Denied July 30, 1958.

Arthur D. Frishman, Miami Beach, for petitioner.

Nichols, Gaither, Green, Frates & Beckham, and Sam Daniels, Miami, for respondent.

ROBERTS, Justice.

This cause is before the court on certiorari granted to review an order of the District Court of Appeal, Third District, dismissing an appeal taken by the petitioner, who was the defendant in the trial court, from a jury verdict and judgment in favor of the plaintiff, respondent here. See 6551 Collins Avenue Corp. v. Millen, Fla.App.1957, 97 So.2d 490, for the District Court's opinion supporting its order of dismissal.

As shown therein and by the record before this court on certiorari, on the appeal to the District Court the defendant assigned as error the denial of a motion for directed verdict made by it at the close of plaintiff's case and renewed after verdict and, according to plaintiff's motion to dismiss the appeal filed in that court, contended on the appeal only that 'there is no evidence to support plaintiff's verdict and judgment and that the District Court should enter a final judgment for defendant.' The District Court granted the motion to dismiss the appeal after argument on the following question of law:

'Whether a defendant who files no motion for new trial and in addition fails to renew his motion for directed verdict at the close of all the evidence, but after an unfavorable verdict does file a post-trial renewal of his motion for directed verdict made at the close of plaintiff's case, can raise on appeal any question concerning the sufficiency of the evidence to support the jury verdict?'

The District Court reasoned that Rule 2.7 of the 1954 Florida Rules of Civil Procedure, 31 F.S.A. (former Florida Common Law Rule 40, as adopted in 1950 and amended in 1952) is patterned after and almost identical to Rule 50 of the 1938 Federal Rules of Civil Procedure, 28 U.S.C.A.; and that, under the federal decisions, a defendant who proceeds to put on his case after a denial of or reservation of decision on a motion for directed verdict made at the close of plaintiff's case is deemed to have waived his motion so that his 'failure to move for a directed verdict at the close of all the evidence * * * precludes an appellate review of the sufficiency of the evidence to sustain the verdict.'

At the outset it should be noted that, insofar as the District Court's opinion may be interpreted as holding that the evidence cannot be reviewed by a Florida appellate court on an assignment of error directed to the denial of a motion for new trial made on the ground that the verdict is against the manifest weight of the evidence, it is in direct conflict with the decision of this court in Ruth v. Sorensen, opinion filed March 21, 1958, 104 So.2d 10.

It should also be noted that, insofar as it follows the federal rule of waiver by defendant of a motion for directed verdict made at the close of plaintiff's case and not renewed at the close of all the evidence, it is in conflict with the expression of this court in Dawes v. Robinson, 1926, 91 Fla. 99, 107 So. 340, although this court was there concerned with an assignment of error directed to the denial of a motion for new trial made on the ground, among others, that the trial judge erred in denying the defendant-appellant's motion for directed verdict made at the close of plaintiff's case.

The particular issue here, however, is whether the District Court erred in applying the federal rule as to waiver in its interpretation of Rule 2.7(b) of the Florida Rules of Civil Procedure, since the only contention made by the defendant on the appeal in the District Court was that the verdict should be set aside and judgment entered for the defendant. We have concluded that the District Court was eminently correct in following the settled federal practice in this respect.

Rule 50(b) of the federal rules and Florida Rule 2.7(b) provide, in part, as follows:

'Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury * * * subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; * * *'

This particular portion of Rule 50(b) was incorporated in the federal rules for the purpose of ending the confusion prevailing in the federal courts as to when and how a litigant could obtain in he trial court a judgment in his favor despite an adverse verdict in favor of his opponent. See Johnson v. New York, N. H. & H. R. Co., 1952, 344 U.S. 48, 51, 73 S.Ct. 125, 97 L.Ed. 77. But until Federal Rule 50(b) was adopted in this state in 1950 as Florida Common Law Rule 40 (1954 Rule 2.7(b)), our trial judges were not authorized to entertain a post-verdict motion to set aside a verdict and enter judgment in accordance with a motion for directed verdict on the ground of the insufficiency of the evidence, as now authorized by Rule 2.7(b). The trial judge could grant a common-law judgment non obstante veredicto upon the motion of plaintiff when the defendant's plea confessed the cause of action and set up matters in avoidance which were insufficient, although true, to constitute either a defense or a bar to the action. But there was no authority, either by statute or by judicial decision, to enter a judgment non obstante veredicto on the ground of the insufficiency of the evidence. See Dudley v. Harrison, McCready & Co., 1937, 127 Fla. 687, 173 So. 820; Heuacker v. Farrelly, 1937, 129 Fla. 239, 176 So. 98; Okeechobee Co., for Use and Benefit of Hamrick v. Norton, 1942, 149 Fla. 651, 6 So.2d 632; Hilkmeyer v. Latin American Air Cargo Expediters, Fla.1957, 94 So.2d 821.

Thus, Rule 2.7(b) introduced an entirely new concept into our trial practice. In effect, it conferred upon the trial judges of this state the same authority as to setting aside a verdict and entering judgment in accordance with a previous motion for directed verdict as was exercised by federal trial judges under Rule 50(b) and federal judicial decisions. It appears to us, therefore, that the federal rule as to waiver may and should be applied in this situation in the same manner as it is applied in the federal courts.

Under federal decisions decided before and after the adoption in this state of what is now Rule 2.7(b), it is clear that a defendant whose motion for directed verdict on the ground of insufficiency of the evidence made at the close of plaintiff's case is denied and not renewed at the close of all the evidence, is in no position to make a post-verdict motion for judgment in accordance with such motion under Rule 2.7(b); thus, the denial of such post-verdict motion cannot be assigned as error on appeal for the purpose of obtaining, on appeal, a direction that judgment be entered in his favor. Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 1941, 122 F.2d 350; Hawkins v. Sims, 4 Cir., 1943, 137 F.2d 66; Southeastern Greyhound Lines v. McCafferty, 6 Cir., 1948, 169 F.2d 1; Boston Insurance Co. v. Fisher, 8 Cir., 1951, 185 F.2d 977; United States v. 363 Cases, etc., D.C. Ark.1956, 143 F.Supp. 219, reversed in United States v. 353 Cases, etc., 8 Cir., 247 F.2d 473.

There is, however, a dearth of federal decisions concerning the effect of a reservation of a ruling on a motion for directed verdict made by defendant at the close of plaintiff's case. In O'Malley v. Cover, 8 Cir., 1955, 221 F.2d 156, 159, the defendant did not renew at the close of all the evidence a motion for directed verdict made at the close of plaintiff's case, upon which a ruling had been reserved by the trial judge; instead; he joined with the plaintiff in a request that the controlling issue in the case be submitted to the jury. In considering an assignment of error directed to the denial of such motion the appellate court said: 'The District Court, under the circumstances, did not and could not err in failing to direct a verdict which, in effect, both parties had asked the court not to direct.' Thus it clearly appears that the decision in the O'Malley case was based not only on the rule of waiver but also on the fact of joinder by the defendant in a request to submit the controlling issue to the jury.

Only two other federal decisions have been found involving a similar question. In Sattler v. Great Atlantic & Pacific Tea Co., D.C.La.1955, 18 F.R.D. 271, the trial judge held, somewhat anomalously, that he had jurisdiction to rule, after a mistrial, on a motion for directed verdict made by defendant at the close of plaintiff's case, a ruling having been reserved at that time, and to enter judgment for defendant-even though, under the decision of the United States Supreme Court in Johnson v. New York, N. H. & H. R. Co., supra, 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77, he was precluded from...