Allstate Ins. Co. v. Gulisano
| Decision Date | 09 October 1998 |
| Docket Number | No. 97-04471.,97-04471. |
| Citation | 722 So.2d 216 |
| Parties | ALLSTATE INSURANCE COMPANY, a corporation, Appellant, v. Salvatore GULISANO and Eleanor Gulisano, Appellees. |
| Court | Florida District Court of Appeals |
Richard A. Sherman of Richard A. Sherman, P.A., Fort Lauderdale, and Ronald L. Napier of Ronald L. Napier, P.A., Naples, for Appellant.
Michael R.N. McDonnell of McDonnell Trial Lawyers, Naples, for Appellees.
Allstate Insurance Company (Allstate) appeals an order granting Salvatore and Eleanor Gulisano's (the Gulisanos) motion for relief from judgment and motion for new trial. We reverse because the record does not support the trial court's order granting the motions.
The Gulisanos filed suit against Allstate under their homeowner's policy for property damage allegedly caused by Hurricane Andrew. On the first day of the two day trial, after the lunch break, the trial judge was informed that Mr. Gulisano was unable to hear testimony due to his hearing impairment. At counsel's request, Mr. Gulisano was permitted to sit in front of the witness stand, apparently with the presumption that close proximity would remedy the problem. He remained seated in front of the witness box without complaint for the remainder of the trial.
At the close of proceedings, the jury found Allstate partially liable (30%) for the Gulisanos' property loss and awarded the couple $5,130.00 for damages and costs. On April 12, 1996, forty-nine days after the jury verdict, the Gulisanos filed an untimely motion for new trial alleging prejudice because Mr. Gulisano was unable to participate in the proceedings due to his profound hearing loss. Three months later, on August 6, 1996, the Gulisanos filed a motion for relief from judgment as an amendment and supplement to their motion for new trial pursuant to Florida Rule of Civil Procedure 1.540. The motion alleged that Mr. Gulisano was unable to prosecute his case and was deprived of due process because inadequate measures were taken to accommodate his hearing disability. The trial court granted the motion following an evidentiary hearing on the matter.
Although the Gulisanos' motion for relief from judgment did not specify, we presume it was filed pursuant to subsection (b) of Florida Rule of Civil Procedure 1.540, which allows the court to vacate a final judgment on grounds of mistake, inadvertence, surprise or excusable neglect, newly discovered evidence, fraud or if the judgment is void or has been satisfied.1 However, the rule does not contemplate relief under circumstances such as these where the moving party has merely suffered prejudice as a result of his own inaction. See, e.g., Bothwell v. State, 450 So.2d 1150 (Fla. 2d DCA 1984) (); John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA 1980); Smiles v. Young, 271 So.2d 798 (Fla. 3d DCA 1973).
As a preliminary matter we note that a motion filed pursuant to rule 1.540 cannot be used as a substitute for an untimely motion for new trial. See Fla. R. Civ....
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