Howard v. Farm Bureau Ins. Co., 84-1655

• Decision Date: 11 April 1985
• Docket Number: No. 84-1655,84-1655
• Parties: 10 Fla. L. Weekly 926 Donna L. HOWARD, joined by her husband, Walter M. Howard, Jr., and Shawn A. Howard, a Minor, by his Father, and Next Friend, Walter M. Howard, Jr., Appellants, v. FARM BUREAU INSURANCE COMPANY, Teddy A. Barwich and John Knight Trucking, Appellees.
• Court: Florida District Court of Appeals

Page 442

467 So.2d 442

10 Fla. L. Weekly 926

Donna L. HOWARD, joined by her husband, Walter M. Howard, Jr., and Shawn A. Howard, a Minor, by his Father, and Next Friend, Walter M. Howard, Jr., Appellants, v. FARM BUREAU INSURANCE COMPANY, Teddy A. Barwich and John Knight Trucking, Appellees.

No. 84-1655.

District Court of Appeal of Florida, Fifth District.

April 11, 1985.

Donna L. Howard and Walter M. Howard, Jr., pro se.

Chris W. Altenbernd of Fowler, White, Gillen Boggs, Villareal & Banker, P.A., Tampa, for appellees.

ON MOTION TO DISMISS

COWART, Judge.

This was a jury trial. Verdict was rendered September 13, 1984. The plaintiffs-appellants filed a motion for a new trial on September 21, 1984, which was authorized and timely under Florida Rule of Civil Procedure 1.530(b) (see also Florida Rule of Appellate Procedure 9.020(g)). That motion was denied by order dated September 25, 1984. A final judgment was rendered September 27, 1984. On October 5, 1984, plaintiffs-appellants filed a second motion for a new trial which motion was denied by order dated October 19, 1984. If the second motion for new trial was authorized and timely, under Rule 9.020(g) it would have postponed the rendition of the final judgment until its disposition by order, and plaintiff's notice of appeal, which was filed on November 18, 1984, and within thirty days of the rendition of the order denying that motion, would be timely. However, we hold that the second motion for a new trial was untimely under Rule 1.530(b) which requires that such a motion be served not later than ten days after the rendition of verdict in a jury action rather than within ten days after entry of a judgment in a non-jury action. Hence, the second motion for new trial was ineffective to defer rendition of the final judgment beyond the date it was filed (September 27, 1984). See Smith v. State, 390 So.2d 813 (Fla. 5th DCA 1980). Accordingly, this appeal is untimely and is

DISMISSED.

DAUKSCH and FRANK D. UPCHURCH, Jr., JJ., concur.