6551 Collins Ave. Corp. v. Millen

CourtUnited States State Supreme Court of Florida
Writing for the CourtROBERTS; TERRELL
Citation104 So.2d 337
Decision Date11 July 1958
Parties6551 COLLINS AVENUE CORP., a Florida corporation, doing business as Monte Cario Hotel, Petitioner, v. Beverlee MILLEN, a single woman, Respondent.

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.

Page 338

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

Page 339

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...

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44 practice notes
  • Pierce v. Lopez, No. 2
    • United States
    • Court of Appeals of Arizona
    • November 24, 1971
    ...upon the motion for directed verdict made at the conclusion of plaintiff's case. Plaintiff relies on 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958) in contending appellants have waived their right for post-trial judgment. There the defendant moved for directed verdict at the ......
  • Christensen v. Stuchlik, No. 9792
    • United States
    • Idaho Supreme Court
    • May 4, 1967
    ...are worthy of consideration. The first of these cases is from the Supreme Court of Florida, being 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla., 1958). Florida had adopted rules of civil procedure comparable to the federal rules in 1954, Therein that court 'From the record now be......
  • Sundale Associates, Ltd. v. Southeast Bank, N.A., No. 82-1970
    • United States
    • Court of Appeal of Florida (US)
    • May 28, 1985
    ...a directed verdict at the conclusion of all of the evidence, as is required to preserve the point. 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958); Hall v. Ricardo, 331 So.2d 375 (Fla. 3d DCA 1976). Moreover, the supposed "exception" to this rule which may arise when there is ......
  • Dean Witter Reynolds, Inc. v. Hammock, Nos. BE-226
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1986
    ...v. Waltman, 480 So.2d 88, 90 (Fla.1985), the supreme court reaffirmed the principle set forth in 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958), holding that "one who submits his cause to the trier of fact without first moving for directed verdict at the end of all evidence h......
  • Request a trial to view additional results
44 cases
  • Pierce v. Lopez, No. 2
    • United States
    • Court of Appeals of Arizona
    • November 24, 1971
    ...upon the motion for directed verdict made at the conclusion of plaintiff's case. Plaintiff relies on 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958) in contending appellants have waived their right for post-trial judgment. There the defendant moved for directed verdict at the ......
  • Christensen v. Stuchlik, No. 9792
    • United States
    • Idaho Supreme Court
    • May 4, 1967
    ...are worthy of consideration. The first of these cases is from the Supreme Court of Florida, being 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla., 1958). Florida had adopted rules of civil procedure comparable to the federal rules in 1954, Therein that court 'From the record now be......
  • Sundale Associates, Ltd. v. Southeast Bank, N.A., No. 82-1970
    • United States
    • Court of Appeal of Florida (US)
    • May 28, 1985
    ...a directed verdict at the conclusion of all of the evidence, as is required to preserve the point. 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958); Hall v. Ricardo, 331 So.2d 375 (Fla. 3d DCA 1976). Moreover, the supposed "exception" to this rule which may arise when there is ......
  • Dean Witter Reynolds, Inc. v. Hammock, Nos. BE-226
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1986
    ...v. Waltman, 480 So.2d 88, 90 (Fla.1985), the supreme court reaffirmed the principle set forth in 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958), holding that "one who submits his cause to the trier of fact without first moving for directed verdict at the end of all evidence h......
  • Request a trial to view additional results

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