Kash N'Karry Wholesale Supermarkets, Inc. v. Garcia, 68--458

• Decision Date: 18 April 1969
• Docket Number: No. 68--458,68--458
• Citation: 221 So.2d 786
• Parties: KASH N'KARRY WHOLESALE SUPERMARKETS, INC., Appellant, v. Ceasar V. GARCIA, Appellee.
• Court: Florida District Court of Appeals

Page 786

221 So.2d 786

KASH N'KARRY WHOLESALE SUPERMARKETS, INC., Appellant, v. Ceasar V. GARCIA, Appellee.

No. 68--458.

District Court of Appeal of Florida, Second District.

April 18, 1969.

Rehearing Denied May 16, 1969.

David A. Maney, of Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, for appellant.

G. Richard Christ and Everett Q. Jones, Tampa, for appellee.

McNULTY, Judge.

Ceasar V. Garcia sued appellant in a slip-and-fall negligence action. After the cause was at issue appellant filed a motion for summary judgment, and after hearing thereon the court reserved ruling. Five days later the trial court entered a final summary judgment in favor of appellant.

Counsel for appellee alleges that he did not receive notice of the entry of the aforesaid final judgment until after the time for filing a motion for rehearing. But an affidavit of the secretary to counsel for appellant alleges that she prepared a final summary judgment in favor of appellant, the original of which she forwarded to the trial judge for his signature. She further alleges that upon being notified by the judge's secretary that the aforesaid final summary judgment had been entered, she called the office of appellee's attorney to inform him of the entry thereof. Upon being informed that appellee's attorney was out of the office she alleges that she left a message with someone in his office, and subsequently mailed him a conformed copy of the judgment. The trial judge did not specifically resolve the patent conflict on this point.

More than ten days after the entry of the aforesaid final summary judgment, plaintiff's counsel filed two motions in an effort to set aside the judgment. One motion was filed pursuant to R.C.P. 1.530 praying for rehearing, and alleged as grounds therefor that '* * * Plaintiff's counsel was not advised of the entry of said judgment and had no knowledge of the same until the 8th day of July, 1968.' The second motion was filed in accordance with R.C.P. 1.540 (b), 31 F.S.A. praying for 'relief' from the aforesaid judgment, and as grounds therefor alleged 'newly discovered evidence.' The two motions were called up for hearing, after which the trial judge set aside the summary judgment and directed that the cause proceed to trial. In his order, the trial judge did not specify which ground, or indeed, which motion was ruled upon; and it is this order from which appellant brings this interlocutory appeal.

Because the trial judge did not specify which motion was granted, and because, as we shall see, he was without authority to grant the motion for rehearing, we believe, and deem it appropriate to pause and say at this time, that interlocutory appeal is the proper method of review here. Appellate Rule 4.2, 32 F.S.A., dealing with interlocutory appeals, except from its operation a review of orders '* * * relating to motions for new trial, rehearing or reconsideration; * * *' But the appeal herein is more properly an appeal from an order entered pursuant to R.C.P. 1.540, as we shall also see; and a motion filed pursuant to this latter rule always presents new and collateral issues to the trial court and, unlike a motion filed pursuant to R.C.P. 1.530, does not pray for 'rehearing' nor 'reconsideration' of matters within the scope of the main issues in the case. ¹ An interlocutory appeal, therefore, will lie to review an order relating to these new and collateral issues.

As we have already noted, the trial judge was without authority to set aside the final summary judgment pursuant to a motion for rehearing. This is so because it is clear such motion was not timely filed; and the rule permitting ex post facto enlargement of time ² specifically excludes extending the time for filing such a motion. The order appealed from, therefore, could not legally be predicated upon this motion.

With regard to the second motion, i.e. for relief pursuant to R.C.P. 1.540, the 'newly discovered evidence' relied upon consists of a purported statement against interest made by appellant's employees, which was overheard by the appellee Garcia at the time of his injury. His counsel set forth the substance of such evidence in an affidavit supporting the motion, as follows:

'At the time of his injury at the Kash N'Karry Wholesale Supermarket on the 10th day of May, 1966, the store manager or assistant manager said to the produce manager words to the effect that the store manager had told the produce manager to 'keep that spot dry.' This occurred while the plaintiff was still on the floor and before he had been picked up.'

It is further alleged by appellee's counsel that his client had not previously revealed this to counsel because he felt it was hearsay and because he 'had forgotten it.' Suffice it to say that this is clearly not 'newly discovered evidence' as contemplated by R.C.P. 1.540. The purpose of this rule was to substitute the motion procedure outlined therein for the common law technicalities of the post judgment remedies of Coram nobis, coram vobis, etc., which it specifically abolished. ³ The Substance of these remedies was not changed, however, ⁴ and it is rudimentary that 'newly discovered evidence' in this frame of reference was that which could not have been timely discovered by due diligence. The evidence relied upon in appellee's motion did not meet this test; and indeed was not evidence 'newly discovered,' rather it was 'forgotten evidence newly remembered,' and as such would not support an order granting relief pursuant to R.C.P. 1.540.

We therefore find that the trial court could not have granted either motion in the form and manner in which each was filed. But we can consider both motions in Para materia, especially since the trial judge did not specify the motion or ground ruled upon; ⁵ and if grounds for relief are stated, whether under one rule or the other, appellee should have his day on the merits. Considered in this light, it is apparent that appellee was in the right church but in the wrong pew; in other words, he alleged potentially meritorious grounds under one motion, when he should have alleged them in the other. His 'newly discovered evidence,' for instance, should have been urged in a timely motion for rehearing under R.C.P. 1.530; and had he done so,...