Behm v. Division of Administration, State Dept. of Transp.

• Decision Date: 08 March 1973
• Docket Number: No. 72--77,72--77
• Citation: 275 So.2d 545
• Parties: Ray G. BEHM and Frances K. Behm, Appellants, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, and Reno Orlando, et al., Appellees.
• Court: Florida District Court of Appeals

Page 545

275 So.2d 545

Ray G. BEHM and Frances K. Behm, Appellants, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, and Reno Orlando, et al., Appellees.

No. 72--77.

District Court of Appeal of Florida, Fourth District.

March 8, 1973.

Rehearing Denied and Question Certified April 13, 1973.

James J. Richardson and Robert D. Canada, of Henderson, Richardson, Canada, Henry, Buchanan & Munroe, Tallahassee, for appellants.

Geoffrey B. Dobson and Barbara Ann Dell McPherson, Tallahassee, for appellees.

WALDEN, Judge.

At the outset--on our motion (with the help of counsels' invited briefs)--we determine that the appeal is untimely. This leaves us without jurisdiction to consider the merits and causes us to dismiss the appeal.

As all know, appeals must be filed within thirty days following rendition in order to vest the appellate court with jurisdiction. ¹ However, such time period is tolled by the postponement of rendition if a Timely post trial motion is made. ² Here, the notice of appeal was filed more than thirty days following the judgment and, as later explained in detail, the appellants did make a post trial motion which, if timely made, would have sufficiently extended the appeal time. Thus, the whole attention of this opinion is directed to the determination of timeliness in presenting the post trial motion.

Now to the specifics. Appellants moved for judgment non obstante veredicto. It was 'filed' with the Clerk of Court more than ten days following verdict and judgment. It was 'served' on opposing counsel within the ten day period following verdict and judgment.

We treat the motion as being within the purview of Rule 1.480(b), F.R.C.P. ³, 30 F.S.A., and thereby as a 'motion for judgment in accordance with the motion for directed verdict.' Bescar Enterprises, Inc. v. Rotenberger, Fla.App.1969, 221 So.2d 801. Under this rule, Within ten 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.' (Emphasis supplied.)

What obligation does this rule and its words, 'may move,' exactly impose upon a party (and his counsel) if he wishes to toll the appeal time and keep alive his appellate rights under Rule 1.3, Rendition, Florida Appellate Rules?, 32 F.S.A. ⁴ What is the critical or dispositive act? For instance, does it mean that a party must file ⁵ his motion with the clerk within the ten day period--does it mean that he must serve ⁶ such motion upon opposing counsel within the ten days--or must he perform the acts simultaneously, or otherwise?

We have not found nor been furnished with any Florida case which is dispositive of the matter. Thus, we look to the federal rules and cases construing them for light and help in finding the way, it being commonly understood that Florida rules are modeled thereafter. Delta Rent-A-Car, Inc. v. Rihl, Fla.App.1969, 218 So.2d 467; Miami Transit Co. v. Ford, Fla.1963, 155 So.2d 360.

Rule 1.480(b), F.R.C.P. ⁷, and Federal Rule 50(b) ⁸ are substantially similar and, with reference to our problem, identical in providing that a party 'may move' within the stated period to have the verdict and judgment set aside.

Only one case have we been able to find which precisely meets the issue. McConnell v. United States, (E.D.Tenn.1970) 50 F.R.D. 499. It squarely holds that such motion must be Filed with the clerk within ten days. 'If such motion is not filed with the clerk within that period, this Court is forbidden to enter a judgment notwithstanding the verdict.' 50 F.R.D. at 501.

Finally, we agree with appellee's contention that in order to 'move' same is accomplished by presenting a motion. A motion is an application to a court to obtain an order directing an act to be done. 23 Fla.Jur., Motions and Orders, § 2. Mere service of a pleading is not enough to present the pleading to the court; filing is necessary. Pan American World Airways v. Gregory, Fla.App.1957, 96 So.2d 669; 56 Am.Jur.2d, Motions, Rules and Orders, § 9.

If our judicial process involved only a ribbon matching technique, we would here simply end this opinion with the word, 'DISMISSED.' We choose, however, in the pursuit of light, to project a dicta critique of a closely related motion and some aspects of timeliness. Although dull, such questions are frequently of imperative significance, as jurisdiction often turns upon their resolution and the mechanism chosen to effectuate the provision of the Rule. It somehow seems impossible to lay such matters at rest as they occur time and time again causing opinions thereon to proliferate which appear to hold one way and the other. Further, the individual rules do not or, rather, should not operate in a vacuum irrespective of the impact of companion rules. We envision that the rules have an interrelationship and that together they form a comprehensive pattern designed to promote the efficient presentation of the substantive controversies.

We recommend, to begin with, that the several rules which require the filing, serving, or moving, with time deadline and jurisdiction in balance, should be clarified with minute specificity by the rule making authority, and hopefully with a degree of uniformity to the end that the reader and user will know precisely what is required.

In the sense that a motion under Rule 1.1480(b), F.R.C.P. ⁹, tolls the time for filing notice of appeal under Rule 1.3, F.A.R. ¹⁰ it is similar in scope and signficance to a motion for a new trial or rehearing, ¹¹ and herein lies an anomaly.

9 Wright & Miller, Federal Practice and Procedure, § 2537, at 602 (1971), discusses the meaning of the words 'may move' in the Federal Rule:

'. . . The rule is certainly ambiguous on this point. It says merely that the party 'may move' within the stated time limit. It does not say whether the motion is considered to have been made when it is served on the other parties or filed with the court. It should be real as referring to service rather than filing, subject to the general provision of Rule 5(b) that papers 'shall be filed with the court either before service or within a reasonable time thereafter.' When the time limit was amended in 1963 the Advisory Committee said that the purpose was to make the provision consistent with the time limit in Rule 59(b) for moving for a new trial. Rule 59(b) is quite explicit that a motion for a new trial must be 'served' within ten days after entry of judgment. If, as the rules permit, a party moves in the alternative for judgment notwithstanding the verdict or for a new trial, and serves that motion within ten days after entry of judgment but does not file it until after the tenth day, it would be quite anomalous to hold that the motion is timely insofar as it seeks a new trial but untimely insofar as it requests judgment.51 (Emphasis supplied.)'

(footnote51) 'Exactly that anomaly resulted in the case under discussion, McConnell v. United States, D.C.Tenn.1970, 50 F.R.D. 499, where the motion was in the alternative.'

Under Federal Rule 50(b) ¹², as pointed out, a motion for a new trial may be joined with a motion for directed verdict. This is also true under Rule 1.480(c), F.R.C.P. ¹³ So we are presented with the same anomaly in Florida as we hold 'may move' requires filing, not service.

And what is the Florida Rule with reference to motions for new trial? The Rule, F.R.C.P. 1.530(b) ¹⁴, 31 F.S.A., provides that such motion 'shall be served' within the requisite period. How has this rule been judicially interpreted in Florida? To put it frankly, the Florida case law is in disarray.

There seem to be at least three Florida views:

A. The view that obtains in federal courts which requires 'service' as the critical act. Miami Transit Co. v. Ford, supra, determined whether a motion for new trial is timely for purposes of tolling the appeal time where the appellant Served the motion for new trial on the appellee within ten days after the verdict was rendered, but did not File it within the ten day period. The court discussed the rule pertaining to motions for new trial, adopting the federal view, and held:

'. . . (I)t will be observed that the critical 10 day period applies to the service of a motion for a new trial. The filing requirement is met if it is accomplished either before service or 'immediately thereafter.' We do not find in the rules a requirement for Filing within the critical 10 day service period. . . .' (Emphasis theirs.)

'The point is extremely important when applied to a motion for a new trial. This is so because a judgment is not deemed to have been rendered so as to establish the beginning of the appeal period where 'there has been a timely and proper motion * * * for a new trial * * *' . . .

'Unless otherwise required, the service of the paper is the critical act which must be done within a specific time . . . Although the rules provide for both service and filing, it seems clear that it is the service which must be accomplished within the time prescribed in the various rules . . ..

'We, therefore, conclude that a motion for a new trial is timely so as to toll the running of the appeal period under Rule 1.3 Florida Appellate Rules, if the motion is served within 10 days after the rendition of the verdict.' (Emphasis supplied.)

'While it should be filed with reasonable promptness and, at all events, before it is presented to the trial judge, the service of the motion on opposing parties is the critical act. Situations may develop where undue delay in filing could result in harm or prejudice to the opposing party. In such event, the trial judge has the power to invoke appropriate penalties even to the extent of refusing to consider the motion.' 155 So.2d 360 at 362--363.

An article on appellate procedure at 20 Miami L.Rev. 368, 398--399, discusses Miami Transit Co. v. Ford, supra, and comments:

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