Bowen v. Willard

• Decision Date: 30 November 1976
• Docket Number: No. 48429,48429
• Citation: 340 So.2d 110
• Court: Florida Supreme Court
• Parties: Jack H. BOWEN and Michigan Mutual Liability Company, Petitioners v. Harvey WILLARD, Respondent.

Page 110

340 So.2d 110

Jack H. BOWEN and Michigan Mutual Liability Company, Petitioners v. Harvey WILLARD, Respondent.

No. 48429.

Supreme Court of Florida.

Nov. 30, 1976.

Marion R. Shepard and Herbert R. Kanning, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for petitioners.

S. Perry Penland, Jacksonville, for respondent.

ENGLAND, Justice.

This case is here on the basis of an alleged conflict between a decision on rehearing of the First District Court of Appeal ¹ and the decisions of this Court in Leonetti v. Boone, 74 So.2d 551 (Fla.1954) and Wolfe v. City of Miami, 114 Fla. 238, 154 So. 196 (1934). The issue presented involves the scope of a district court's review in an appeal taken pursuant to Section 59.04, Florida Statutes (1975), which provides 'Appeal from order granting new trial. Upon the entry of an order granting a new trial, the party aggrieved may prosecute an appeal to the proper appellate court without waiting for final judgment. If the judgment is reversed, the appellate court may direct that final judgment be entered in the trial court for the party obtaining the verdict unless a motion in arrest of judgment or for a judgment notwithstanding the verdict be made and prevail.'

Harvey Willard brought a negligence action against Jack Bowen. The case was tried to a jury which rendered a verdict in Willard's favor. Bowen then moved for a directed verdict or in the alternative for a new trial. The trial judge denied Bowen's motion for a directed verdict, but granted a new trial because 'the preponderance of the evidence and the manifest justice of the case clearly' required it. Willard appealed to the district court pursuant to Section 59.04, citing as error the failure of the trial judge to state that the verdict was against the manifest weight of the evidence. Bowen cross-assigned as error the lower court's denial of his motion for a directed verdict. The district court rendered a brief opinion which stated in relevant part:

'The sole question presented for our consideration is whether the trial court's order granting a new trial must state that the jury verdict was against the 'manifest weight of the evidence'. . . . We hold that the ground set forth in the order reviewed herein was . . . deficient . . ..' ²

The district court's opinion concluded with a mandate stating:

'. . . For the reasons stated, the order granting new trial is reversed and the cause is remanded with directions to reinstate the verdict and enter judgment thereon.' ³

On remand final judgment was entered for Willard in accordance with the mandate. Bowen then appealed this final judgment, citing as error the denial of his motion for a directed verdict. A split district court again reversed, finding that the evidence was so deficient that the trial court should have granted Bowen's motion for a directed verdict. A dissenting judge thought the district court's original mandate was incorrect, and that the appropriate course of action originally should have been a remand with instructions to the trial judge to reconsider and rule on Bowen's motion for a new trial. On rehearing, a majority of the district court receded from its second opinion and affirmed the judgment for Willard on the authority of its first opinion and in the light of Matter of Vermeulen, 122 So.2d 318 (Fla.1st DCA 1960).

From the reference to Vermeulen, we understand the district court's short opinion on rehearing to mean that the court felt bound by the mandate it had entered in its first decision. The effect of this action, however, is to forestall forever any appellate review of the denial of Bowen's motion for a directed verdict.

In Leonetti and Wolfe we held that an appellate court may not consider the question of a directed verdict on review of an order granting a new trial taken under the predecessor of Section 59.04. We there held that a ruling on a motion for directed verdict is properly reviewable only on appeal of the final judgment in the cause. Obviously, that decision conflicts directly with the district court's decision on rehearing in this case, and we have jurisdiction to harmonize the law. ⁴

Under our rulings in Leonetti and Wolfe, the district court had no authority on the first appeal it heard to consider the other issue brought by Bowen. ⁵ Its written decision indicates that the district court did not exceed that limited scope. By confining its review on that occasion to the order granting a new trial, which is appealable as a matter of substantive law though technically neither interlocutory nor final, ⁶ the district court only considered the legal standard applied by the trial judge and did not review the record.

Ordinarily, the responsibility of the district court on the second appeal would have been either to clarify the original mandate and remand to the trial court for a new ruling, under the proper standards, on Bowen's motion for a new trial, as the dissent suggested, or to review by appeal the trial court's denial of the motion for a directed verdict, as the majority did. Unfortunately, both of those alternates were obliterated when the district court on rehearing receded from the majority decision. Since only the last action was error, we quash the district court's determination on rehearing and remand the case to that court for a re-selection from among the two possible and proper alternatives. It is not within our province either to weigh the record and inject our judgment into the directed verdict question, or to clarify the district court's original mandate as to the motion for a new trial.

We would be remiss, however, if we did not address the extraordinary waste of resources evident from this record, or concern ourselves with the duplicative...