Lehmann v. Cloniger, U-289
| Decision Date | 16 May 1974 |
| Docket Number | No. U-289,U-289 |
| Parties | Robert E. LEHMANN, Appellant, v. Claude CLONIGER and his wife, Blanche Cloniger, Appellees. |
| Court | Florida District Court of Appeals |
Appellees seek dismissal of this appeal on the asserted basis that the notice was not timely filed and that this Court is therefore without jurisdiction.
It is fundamental that timely filing of the notice of appeal is jurisdictional and that an appellate court is without authority to exercise its jurisdiction unless the notice is filed within the time and in the manner prescribed by the rules. (State ex rel. Diamond Berk Ins. Agency, Inc. v. Carroll, Sup.Ct.Fla.1958, 102 So.2d 129; Pitts v. State, Fla.App. (1st) 1969, 225 So.2d 352)
At the conclusion of a jury trial wherein the appellees, as plaintiffs below, were seeking compensatory and punitive damages, the trial judge granted the plaintiffs' motion for a directed verdict in their favor as to compensatory damages, submitting the issues relative to punitive damages to the jury. The jury returned a verdict dated August 7, 1973 in favor of the plaintiffs in the sum of $41,450.00 compensatory damages in accordance with the directed verdict, plus punitive damages in the sum of $100,000.00. That verdict was filed in the office of the Clerk of the Circuit Court and recorded in the minutes of the court on the date of its entry, August 7, 1973. The plaintiffs (appellees here) thereafter filed a motion to assess costs and enter final judgment, based upon the jury verdict, whereupon a final judgment in the sum of $141,450.00 together with costs taxed in the sum of $1,431.71 was entered by the trial judge on August 30, 1973, which final judgment was filed in the office of the Clerk of the Circuit Court and recorded on that date. A motion for new trial was Served by the defendant (appellant here) on September 5, 1973 and was Filed in the office of the Clerk of the Circuit Court on September 10, 1973. An order denying a new trial was entered, filed and recorded on October 11, 1973. Notice of appeal was filed on October 29, 1973.
Appellees contend, in their motion to dismiss the appeal, that the motion for new trial should have been filed, in order to have tolled the time for filing notice of appeal, within 10 days from the date of the verdict, and that failing so to do, the 30 day period allowed for the filing of a notice of appeal had expired prior to October 29, 1973, the date that same was filed.
Appellant urges that the 10 day period for the filing of the motion for new trial commenced to run upon rendition of the final judgment and that inasmuch as the motion for new trial was Served on the sixth day after entry of the final judgment and Filed on the eleventh day thereafter (the tenth day having fallen on a Sunday) the motion for new trial was timely filed and that therefore the time for filing notice of appeal was tolled until the motion for new trial was disposed of by the court's order of October 11, 1973; the notice of appeal having been filed within the prescribed period thereafter.
The issue, then, to be decided is whether the motion for new trial was timely filed in accordance with the applicable rules. Refining the issue further, we must determine whether the 10 day period for the filing of the motion for new trial commenced to run upon the entry of the verdict (August 7, 1973) or upon entry of the final judgment (August 30, 1973).
Rule 3.2, subd. b., F.A.R., 32 F.S.A., provides as follows:
'Appeals from final decisions, orders, judgments or decrees shall be commenced within 30 days from the Rendition of the final decision, order, judgment or decree appealed from, * * *' (Emphasis added)
Rule 1.3, F.A.R., defines 'rendition' as follows:
"Rendition' of a judgment, decision, order or decree means that it has been reduced to writing, signed and made a matter of record, or if recording is not required then filed. A paper is deemed to be recorded when filed with the clerk and assigned a book and page number. Where there has been filed in the lower court a Timely and proper motion or petition for a new trial, for a rehearing, Or other timely post-trial motion or petition permitted by the Rules, the decision, judgment, order or decree shall not be deemed rendered until such motion or petition is disposed of.' (Emphasis added)
Rule 1.530(b), R.C.P., 31 F.S.A., provides as follows:
'A motion for a new trial or for rehearing shall be Served not later than 10 days after the Rendition of verdict in a Jury action or the entry of Judgment in a non-jury action. * * *' (Emphasis added)
It is interesting to note that in defining 'rendition' in Rule 1.3, F.A.R., the Supreme Court refers...
To continue reading
Request your trial
-
Shova v. Eller
...function, I agree that the judiciary should liberally construe article I, section 21, to limit its own power. See Lehmann v. Cloniger, 294 So.2d 344 (Fla. 1st DCA 1974) (access to courts provision liberally construed with respect to rules governing time to file motion for new trial). This c......
-
Bain v. State, 97-02007
...the right of access to courts must be liberally construed in favor of the right. See Kennedy, 667 So.2d at 1014; Lehmann v. Cloniger, 294 So.2d 344 (Fla. 1st DCA 1974). Surely, in light of these principles, any question about legislative power to encroach upon an important appellate right g......
-
Shay v. First Federal of Miami, Inc.
...created rules limit access to the courts. G.B.B. Investments, Inc. v. Hinterkopf, 343 So.2d 899 (Fla. 3d DCA 1977); Lehmann v. Cloniger, 294 So.2d 344 (Fla. 1st DCA 1974). It is the official capacity to exercise power which subjects the actions of the legislature and the judiciary to strict......
-
McCuiston v. Wanicka
...v. White, 281 So.2d 1 (Fla.1973). Any restrictions must be liberally construed in favor of the constitutional right. Lehmann v. Cloniger, 294 So.2d 344 (Fla. 1st DCA 1974). G.B.B. Investments. "The law abhors the denial of access to the courts for any other reason than a wilful abuse of the......