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

• Decision Date: 16 January 1974
• Docket Number: No. 43726,43726
• Citation: 288 So.2d 476
• Parties: Ray G. BEHM and Frances K. Behm, Petitioners, v. DIVISION OF ADMINISTRATION, State of Florida DEPARTMENT OF TRANSPORTATION, Respondent.
• Court: Florida Supreme Court

Page 476

288 So.2d 476

Ray G. BEHM and Frances K. Behm, Petitioners, v. DIVISION OF ADMINISTRATION, State of Florida DEPARTMENT OF TRANSPORTATION, Respondent.

No. 43726.

Supreme Court of Florida.

Jan. 16, 1974.

James J. Richardson, of Henderson, Richardson, Canada, Henry, Buchanan & Munroe, Tallahassee, for petitioners.

Geoffrey B. Dobson, Gen. Counsel, and Barbara Ann Dell McPherson, Asst. Atty., Tallahassee, for respondent.

CARLTON, Chief Justice.

On petition for writ of certiorari, we are asked to review a decision of the District Court of Appeal, Fourth District, reported at 275 So.2d 545. Our jurisdiction is based upon the certification by the District Court of the following question as one of great public interest:

'In order for same to be timely, must a post trial motion under Rule 1.480(b), R.C.P. (which provides that a party May move thereunder within ten days) be filed with the Clerk of Court within such period?'

See Article V, Section 3(b)(3), Constitution of the State of Florida, F.S.A.

The petitioners (appellants before the District Court) had moved in the trial court for a judgment non obstante veredicto. This motion was properly treated as a motion for judgment in accordance with a motion for a directed verdict, as provided for in Rule 1.480(b), F.R.C.P., 30 F.S.A., the pertinent part of which is:

'. . . 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 . . ..' (e.s.)

Petitioners' motion was served on opposing counsel on the tenth day following the verdict and judgment; however, it was not filed with the Clerk of Court until two days later. Subsequently, the motion was denied, and the petitioners appealed to the District Court. The notice of appeal was filed within thirty days of the denial of the motion, but more than thirty days after the judgment appealed from was rendered. The respondents moved the District Court to dismiss the appeal, and this motion was granted in the decision we are now asked to review.

Rule 3.2, Florida Appellate Rules, 32 F.S.A., provides that appeals must be taken within thirty days from the 'rendition' of a judgment. Rule 1.3, Florida Appellate Rules, defines 'rendition' and continues:

'. . . Where there has been filed in the lower court a timely and a proper motion or petition for a new trial, for a rehearing, or other timely post-trial motion or petition permitted by the Rules, the decision, judgment, order or decree shall not be deemed rendered until such motion or petition is disposed of.'

Since a post-trial motion had been filed in the lower court in this cause, the District Court was faced with the question of whether or not the motion was 'timely and proper'. If the motion was 'timely and proper', the appeal was timely and should not have been dismissed. The District Court, however, held that the motion was not timely and that the appeal, therefore, should have been taken within thirty days of the judgment. The District Court dismissed the appeal and certified to us the question quoted above.

We answer the certified question in the negative, thereby reversing the dismissal of the appeal, and we remand this cause to the District Court for consideration of the appeal on the merits.

We answer the certified question in conformance with our opinion in Miami Transit Company v. Ford, 155 So.2d 360 (Fla.1963), which involved a highly analogous situation. In Miami Transit, a motion for new trial was served on opposing counsel within ten days of a final judgment, but the motion was not filed in the trial court until after ten days had elapsed. The District Court of Appeal granted a motion to dismiss an appeal which was taken within thirty days of the denial of the motion for new trial, but not within thirty days from the time the judgment was rendered. This Court reversed.

When Miami Transit was decided, Rule 2.8(b), F.R.C.P., provided:

'A motion for new trial, or a motion for rehearing in matters heard without a jury or rehearing of any motion for judgment provided for by these rules, Shall be served not later than ten days after the rendition of verdict or the entry of a summary judgment.' (e.s.)

Rule 1.3, Florida Appellate Rules, at that time, provided, in part:

'. . . Where there has been a timely and proper motion or petition for a new trial, rehearing or reconsideration by the lower court, the decision, judgment, order or decree shall not be deemed rendered until such motion or petition is disposed of.'

In reversing the dismissal of the appeal, we held, inter alia, at 155 So.2d 362--363:

'Unless otherwise required, the service of the paper is the critical act which must be done within a specific time. Federal Practice and Procedure, Barron and Holtzoff, (Wright Edition), Section 205 (1960). 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. This interpretation is, in a measure, supported by the fact that in the original draft of the Federal Rules, the Advisory Committee suggested a provision in Rule 5(b), supra, which reads:

'When a time is prescribed for the service of a pleading or other paper, it shall be filed with the court as well as served within that time.'

This suggestion, however, was eliminated from the rule when it was adopted. As Federal 5(b) ultimately evolved, it merely required filing 'within a a reasonable time' and circumscribed service with the requirement of a specific period of time. The objective, of course, was to make provision for notifying the parties of the progress of the action without the necessity of examining the files in the clerk's office. At the same time, the rules make provision for filing so that the official record will be complete. Moore's, Federal Practice, Second Edition, Volume II, page 1318, Section 5.02, 1962; Cyclopedia of Federal Procedure, Third Edition, Volume 4, Section 12.13 (1951).

There is a paucity of federal cases on the problem. This evidently results from the fact that the rule appears clear. When the matter has been presented for consideration, however, it has been held that in the absence of a specific rule provision, it is the service of a paper which is critical to its consideration. It has been held that if an answer is served in time, a default cannot be entered even though the answer was filed three days beyond the time allowed for service. Blank v. Bitker (7th Cir.), 135 F.2d 962.

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.

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 considerer the motion. A decision governing such situations will have to await the event thereof. In the instant case no harm or prejudice from failure to file is reflected by the decision of the district court and none is suggested.' (e.s.)

The instant case, of course, involves Rule 1.480(b), F.R.C.P., rather than Rule 1.530(b), 31 F.S.A. (essentially the same as the former Rule 2.8(b), F.R.C.P. relating to motions for a new trial), but the rationale behind our Miami Transit decision and this one is the same. The only pertinent change to Rule 1.3, Florida Appellate Rules, since Miami Transit was decided has been the substitution of 'Where there has been filed in the lower court a timely and proper motion or petition for a new trial, for a rehearing, or other timely post-trial...