Fire & Cas. Ins. Co. of Conn. v. Sealey

• Decision Date: 19 February 2002
• Docket Number: No. 1D01-3651.,1D01-3651.
• Parties: FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT, Appellant, v. James David SEALEY, Appellee.
• Court: Florida District Court of Appeals

810 So.2d 988

FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT, Appellant, v. James David SEALEY, Appellee.

No. 1D01-3651.

District Court of Appeal of Florida, First District.

February 19, 2002.

Rehearing Denied March 26, 2002.

George N. Meros, Jr., of Gray, Harris & Robinson, P.A., Tallahassee, for Appellant.

John Beranek of Ausley & McMullen Tallahassee; Gregg Johnson, Jacksonville; and David Wm. Boone of the Law Offices of David Wm. Boone, Atlanta, for Appellee.

PADOVANO, J.

We dismiss the appeal for lack of jurisdiction. The notice of appeal was not filed within thirty days of the date of rendition of the final judgment. Although the notice would have been timely if measured from the date of a subsequent order denying the defendant's post trial motions, these motions were all ineffective to suspend the running of the time for an appeal.

The plaintiff asserted an uninsured motorist claim against the defendant and ultimately prevailed at trial. The jury returned a verdict for damages in favor of the plaintiff on February 9, 2001. Approximately three months later on May 10, 2001, the trial court entered a final judgment based on the verdict. The court apportioned the plaintiff's comparative fault and made the appropriate adjustments for prejudgment interest and collateral source benefits, and then entered a judgment of $1,878, 687.35 in favor of the plaintiff. The defendant had not filed any motions challenging the verdict before the entry of the judgment.

On May 21, 2001, the defendant served a motion for remittitur, a motion for new trial, and a motion for judgment notwithstanding the verdict. In the motion for remittitur the defendant made four main arguments: (1) the plaintiff failed to present evidence of causation, (2) the verdict was influenced by passion, prejudice, and sympathy, (3) the plaintiff failed to present evidence of lost wages, and (4) the plaintiff failed to present evidence of his future medical expenses. These arguments are directed exclusively to the jury's verdict. The opening line of the motion states that the defendant is moving "for a remittitur of the verdict." The motion for a new trial presents the same four arguments raised in the motion for remittitur, but it also contains an argument that the verdict is contrary to the manifest weight of the evidence, and an argument that the trial court erred in denying the defendant's motion for directed verdict. Although the motion for judgment notwithstanding the verdict was submitted as a separate pleading, it is identical to the motion for a new trial.

On August 3, 2001, the trial judge entered an order denying all three of the defendant's post-trial motions. The defendant filed a notice of appeal on August 31, 2001, to seek review in this court. Because it was not clear from the notice of appeal whether the post-trial motions were timely, and therefore capable of suspending rendition of the final judgment, we issued an order directing the defendant to show cause why the appeal should not be dismissed as untimely. The defendant responded with an argument that the court has jurisdiction. The plaintiff moved to dismiss the appeal and the defendant submitted a response in opposition to the motion to dismiss.

We are governed by the fundamental principle that the time for initiating an appeal is jurisdictional. If the notice of appeal is not filed within the time set by the applicable rule, the appellate court must dismiss the appeal. See State ex rel. Cantera v. District Court of Appeal, Third District, 555 So.2d 360, 362 (Fla.1990)

; Int'l Studio Apt. Ass'n v. Sun Holiday Resorts, Inc., 375 So.2d 335, 336 (Fla. 4th DCA 1979). The method of initiating an appeal from a final order in a civil case is outlined in rule 9.110(b) of the Florida Rules of Appellate Procedure. This rule states that the notice of appeal must be filed "within 30 days of the date of rendition of the order to be reviewed."

Rule 9.020(h) provides that "[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal." See Casto v. Casto, 404 So.2d 1046, 1047 (Fla.1981)

; State v. Moore, 563 So.2d 115 (Fla. 2d DCA 1990). Here, the judgment was reduced to writing, signed, and filed on May 10, 2001. The time for an appeal began to run from that date.

The date of rendition, and thus the beginning of the jurisdictional time limit for filing an appeal, may be delayed by the filing of certain motions in the lower court after entry of the final judgment. Rule 9.020(h) identifies these motions and sets forth the requirements for suspending the date of rendition.¹ A motion is generally not effective to suspend rendition of the time for an appeal unless it is one of the motions identified in the rule. See Klemba v. State, 490 So.2d 1050 (Fla. 4th DCA 1986)

; Joseph v. State, 437 So.2d 245, 246 (Fla. 5th DCA 1983); Culpepper v. Britt, 434 So.2d 31, 32 (Fla. 2d DCA 1983). If a party files a motion that is authorized in the proceeding, but not listed in rule 9.020(h), the time for filing an appeal will run uninterrupted from the date the final order was reduced to writing, signed, and filed with the clerk.

Filing one of the motions listed in rule 9.020(h) will suspend rendition of the final order only if the motion is timely under the rules applicable to the proceeding in the lower court. See Salam v. Benmelech, 622 So.2d 592, 593 (Fla. 3d DCA 1993)

(untimely motion to alter or amend); Bailey v. Mobile Home Park Realty, Inc., 579 So.2d 198, 199, 200 (Fla. 2d DCA 1991) (untimely motion in arrest of judgment); Americare Biologicals, Inc. v. Technical Chemicals & Products, Inc., 766 So.2d 284 (Fla. 4th DCA 2000) (untimely motion for rehearing); see also Howard v. Farm Bureau Ins. Co., 467 So.2d 442 (Fla. 5th DCA 1985); White v. State, 416 So.2d 39 (Fla. 2d DCA 1982). Hence, a motion that is untimely does not toll the time for an appeal, even if the motion is one of those identified in rule 9.020(h) as a motion that is otherwise capable of suspending rendition.

To determine the timeliness of the defendant's post-trial motions, we must refer to the rules governing each of those motions. Rule 1.530(b) of the Florida Rules of Civil Procedure states in pertinent part that a motion for a new trial must be served "not later than 10 days after the return of the verdict in a jury action." The same time limit applies to the service of a motion for judgment notwithstanding the verdict, which is now more often referred to as a motion for judgment in accordance with a prior motion for directed verdict.² Rule 1.480(b) states that "[w]ithin 10 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict."

It follows that both the motion for new trial and the motion for judgment notwithstanding the verdict were ineffective to suspend rendition of the final judgment. The time for service of each motion began on February 9, 2001, the day the jury returned its verdict. Both motions had to be served within ten days after the return of the verdict, but neither was served until May 21, 2001, more than three months later.

This leaves only the defendant's motion for remittitur, but it did not delay the running of the appeal time either. A motion for remittitur is essentially a conditional motion for a new trial. See Poole v. Veterans Auto Sales & Leasing Co., 668 So.2d 189 (Fla.1996)

. As we have explained, a motion for new trial must be served within ten days after the return of the verdict. The motion for remittitur, like the other two post-trial motions, was served more than three months after the verdict. Hence, it was untimely and therefore ineffective to suspend rendition.

The defendant contends that the motion for remittitur should be treated as a motion to alter or amend the judgment, one of the motions that can operate to suspend rendition under rule 9.020(h). If we were to reclassify the motion in this way it would be timely and thus it would delay rendition of the final judgment until August 3, 2001, when the motion was denied. Rule 1.530(g) provides that a motion to alter or amend the judgment "shall be served not later than 10 days after entry of the judgment" and the motion in this case was served within that time. However, we cannot treat the motion for remittitur as if it were a motion to alter or amend the judgment.

We agree that the true nature of a motion must be determined by its content and not by the label the moving party has used to describe it. See Magnum Towing, Inc. v. Sunbeam Television Corp., 781 So.2d 379, 380 (Fla. 3d DCA 1998)

(treating a motion styled as a "motion for reconsideration" as a motion for rehearing); Olson v. Olson, 704 So.2d 208, 210 (Fla. 5th DCA 1998) (construing a motion to set aside a final judgment as a motion for rehearing). When we consider the content of the motion for remittitur, though, we conclude that it was, in fact, a conditional motion for a new trial, not a motion to alter or amend the judgment. We can look beyond the label the defendant used, but we cannot make the motion into something it was not.

A motion to alter or amend is most often used to correct a substantive error in the judgment itself. For instance, it would be proper to file a motion to alter or amend if the judgment did not accurately reflect the decision of the court. See Fisher v. Fisher, 787 So.2d 926, 929 (Fla. 2d DCA 2001)

(the judgment did not conform to the provision of the marital settlement agreement); Sanchez v. Sanchez, 435 So.2d 347, 349 (Fla. 3d DCA 1983) (the court ordered alimony in the amount of $100 per month, but the judgment erroneously required payments of $100 per week). The function of the motion in this class of cases is to inform the court that an issue was not adjudicated in the judgment in the same way that it was decided.

It...