DeWitt v. Seaboard Coast Line R. Co.

• Decision Date: 19 May 1972
• Docket Number: No. 71--441,71--441
• Citation: 268 So.2d 177
• Parties: George H. DeWITT, as Executor of the Estate of Ruth W. DeWitt, Deceased, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Appellee. George H. DeWITT, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 177

268 So.2d 177

George H. DeWITT, as Executor of the Estate of Ruth W. DeWitt, Deceased, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Appellee. George H. DeWITT, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Appellee.

No. 71--441.

District Court of Appeal of Florida, Second District.

May 19, 1972.

On Rehearing Oct. 11, 1972.

Rehearing Denied Nov. 13, 1972.

Russell Troutman, of the Law Offices of Russell Troutman, Winter Park, for appellant.

Frederick J. Ward, of Giles, Hedrick & Robinson, Orlando, for appellee.

PIERCE, Chief Judge.

Before this case came on for oral argument there appeared to be a question of whether or not this Court had jurisdiction to entertain the appeal. The parties were given an opportunity to file briefs on the subject. We have reviewed the briefs filed by the parties, as well as the applicable Rules, and have determined that we do have jurisdiction.

On January 12, 1971, the lower Court entered an order for partial summary judgment in favor of the defendant, Seaboard, on the issue of punitive damages and ordered that the cause be tried solely on the issue of compensatory damages. On January 20, 1971, plaintiff DeWitt, moved for a rehearing as to the order for partial summary judgment. On May 6, 1971, the Court entered its order denying DeWitt's motion for rehearing. On June 3, 1971, DeWitt filed his notice of appeal. The question is whether or not a motion for rehearing tolls the time for taking an appeal from a partial summary judgment.

Rule 1.530(a) R.C.P., 31 F.S.A. provides:

'Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony and enter a new judgment.'

Rule 1.510(b) R.C.P. provides:

'For Defending Party. A party against whom a claim, counterclaim, cross-claim or third party claim is asserted or a declaratory judgment is sought may move for a summary judgment in his favor as to all or any part thereof at any time with or without supporting affidavits.'

The last sentence in Rule 1.510(c) R.C.P. provides:

'A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.'

Appellate Rule 4.2, 32 F.S.A., provides that interlocutory appeals may be prosecuted from orders granting partial summary judgment on liability in civil actions. While there is no provision for rehearings directed to interlocutory orders, Home News Publishing Company v. U--M Publishing, Inc., Fla.App.1971, 246 So.2d 117, Rule 1.530(a) R.C.P. does not limit the right to move for rehearing to summary judgments which conclude all the issues.

The rule making authorities may have intended that a motion for rehearing should be directed only to final summary judgments which resolve all the issues between the parties. See Weisberg v. Perl, Fla.1954, 73 So.2d 56, and Kippy Corporation

v. Colburn, Fla.1965, 177 So.2d 193. In Kippy, at page 198, Justice O'Connell said

'Quite obviously the majority receded from the decision in the Weisberg case because of the harsh and somewhat inconsistent effect of the then existing rules which permitted timely correction by a trial court of all final orders except those summarily entered.

'The specific problem presented in the Floyd case will not appear again because the rules have been amended to permit reconsideration of a summary final order.'

But neither Rule 1.510 or Rule 1.530 R.C.P. makes a distinction between such final summary judgment and a summary judgment which concludes only a part of the issues between the parties.

We must conclude, then, that a motion for rehearing tolls the time for taking an appeal from a summary judgment, whether it resolves all or only a part of the issues between the parties.

The order appealed was an interlocutory order, being a partial summary judgment on the issue of liability for punitive damages, and the appeal should have been designated as an interlocutory appeal as provided by F.A.R. 4.2. However, we shall treat the appeal as an interlocutory appeal, Triax, Inc. v. City of Treasure Island, Fla.App.1967, 198 So.2d 870; Rivers v. Ellman, Fla.App.1968, 206 So.2d 456.

Turning to the question of whether the lower Court erred in granting Seaboard's motion for summary judgment as to punitive damages, there was no evidence...