Bescar Enterprises, Inc. v. Rotenberger
| Decision Date | 17 April 1969 |
| Docket Number | No. 2076,2076 |
| Citation | 221 So.2d 801 |
| Parties | BESCAR ENTERPRISES, INC., Appellant, v. Stanley ROTENBERGER, Appellee. |
| Court | Florida District Court of Appeals |
J. A. Plisco of Plisco & Zalla, West Palm Beach, for appellant.
John A. Paul of Warwick, Paul & Herring, West Palm Beach, for appellee.
The defendant corporation appeals from an order granting a new trial after the jury had favored it with a verdict.
The verdict was rendered on January 22, 1968. Plaintiff filed a motion for new trial on February 5, 1968. Defendant then moved to strike same as untimely, but the court disagreed and entered its order granting a new trial, stating '* * * the defendant contends that the motion was not timely filed; however, it may be filed within ten days after the verdict, or after Final Judgment, and Final Judgment has not been entered herein.' Among other issues defendant questions the propriety of such an order on an untimely motion.
R.C.P. 1.530(b), 31 F.S.A., then in force, provided in part:
(Emphasis added.)
The emphasized portions of the rule relate to each other with the critical ten-day period for filing a motion for new trial in a jury case commencing upon rendition of the verdict. 1 A motion for new trial is distinguishable from a motion for rehearing with the latter applicable where judgment has been entered in a nonjury action.
This view is supported by other provisions of R.C.P. 1.530 wherein the paragraph preceding the one in question reads in part as follows:
Moreover, earlier 2 and later 3 provisions of this rule recognize the distinction between jury and nonjury actions.
Moving to the question of the effect of an untimely motion for new trial, we conclude in such instance that the trial court has no choice but to deny it. The court cannot hear and pass on a reason for a new trial which is not filed within the time specified. 4 It should be treated as nothing more than what it actually is--an untimely motion subject to be stricken or denied. Therefore, in this cause the trial court erred in favorably considering the motion for new trial filed fourteen days after rendition of the jury verdict.
In light of the conclusions set forth above, we do not deem it...
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Investment Corp. of South Fla. v. Florida Thoroughbred Breeders Ass'n
...Fla.App.1969, 217 So.2d 871; Kash N'Karry Wholesale Supermarkets, Inc. v. Garcia, Fla.App.1969, 221 So.2d 786; Bescar Enterprises, Inc. v. Rotenberger, Fla.App.1969, 221 So.2d 801. If the timely filing of a petition for rehearing or motion for new trial were not mandatory such a motion or p......
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Behm v. Division of Administration, State Dept. of Transp.
...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......
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Migliore v. Migliore, s. 97-1521
...v. Moore, 410 So.2d 973 n. 3 (Fla. 5th DCA 1982); Nahoom v. Nahoom, 341 So.2d 257 (Fla. 3d DCA 1977) and Bescar Enters., Inc. v. Rotenberger, 221 So.2d 801 (Fla. 4th DCA 1969)(In none of these cases did the use of the word "filing," rather than "service," result in an incorrect disposition.......
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Culpepper v. Britt, 82-2893
...rendition, and a motion to tax costs is not one of them. The correct rule to be applied here is stated in Bescar Enterprises, Inc. v. Rotenberger, 221 So.2d 801 (Fla. 4th DCA 1969). Since the post-trial motion to tax costs did not suspend rendition of the verdict, appellants' motion for new......