Martin v. Carlton, BC-224

• Decision Date: 18 June 1985
• Docket Number: No. BC-224,BC-224
• Citation: 470 So.2d 875,10 Fla. L. Weekly 1514
• Parties: 10 Fla. L. Weekly 1514 Larry MARTIN, individually; Bruce Martin, individually; and Larry Martin and Bruce Martin, d/b/a Martin's Casa Grande, Appellants/Cross-Appellees, v. W. Albert CARLTON and Barbara Carlton, his wife, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 875

470 So.2d 875

10 Fla. L. Weekly 1514

Larry MARTIN, individually; Bruce Martin, individually; and Larry Martin and Bruce Martin, d/b/a Martin's Casa Grande, Appellants/Cross-Appellees, v. W. Albert CARLTON and Barbara Carlton, his wife, Appellees/Cross-Appellants.

No. BC-224.

District Court of Appeal of Florida,

First District.

June 18, 1985.

Ernest A. Sellers and Andrew J. Decker, III, of Airth, Sellers, Lewis & Decker, Live Oak, for appellants/cross-appellees.

Thomas J. Roehn of Annis, Mitchell, Cockey, Edwards & Roehn, Tampa, for appellees/cross-appellants.

PER CURIAM.

This is an appeal by the plaintiff from an order granting a motion for new trial in a cause tried before the court without a jury. The defendant has cross appealed, raising numerous points challenging the sufficiency of the evidence to support findings contained in the final judgment.

The ground for the new trial was the trial judge's finding that, after the trial and before the entry of judgment, he had been subjected to improper ex parte communications in the case. In the order granting a new trial, the judge recused himself from further consideration of the case.

It is apparent that the primary purpose of the letter to the judge which he found prejudicial was to stimulate the judge to early disposition of the case, in which thirteen months had elapsed since trial and eight months since trial briefs had been submitted. Nevertheless, the letter did contain some material which was improper, and, by oversight of counsel, the letter was not served upon opposing counsel in time for him to respond prior to the entry of judgment.

It is obviously difficult for a reviewing court to test the conscience of a trial judge on a matter pertaining to improper communications. Here, although the judge felt he was not influenced by this communication, he did feel that it was necessary to grant a new trial and to recuse himself. We therefore affirm the order for a new trial and the order of recusal.

Because we affirm the order granting a new trial, we do not address the issues raised on cross appeal. The issues raised on cross appeal challenge a final order that has been vacated by the trial court's order granting a new trial, which we have just affirmed. This affirmance has rendered these issues moot.

While declining to reach the issues raised on cross appeal, we are aware of Rules 9.130(a)(4) ¹ and 9.110(H), FLORIDA RULES OF APPELLATE PROCEDURE², and Bowen v. Willard, 340 So.2d 110 (Fla.1976). In Bowen, supra, the Supreme Court was concerned with "the duplicative appeal procedures" and "the unproductive time delays and expense" involved when an order granting a new trial is reversed and the cause is remanded for the purely ministerial task of entering a formal final judgment before a challenge to that judgment can be made on appeal. The Supreme Court determined that, in this situation, no substantive right would be affected and held, therefore, that appeals taken from new trial orders should be treated as appeals from final judgments to the extent possible, and appellate courts have authority to deal with other appealable issues.

Both the Supreme Court in Bowen, supra, and the Committee Notes to Rule 9.110(h), Florida Rules of Appellate Procedure, recognize, as indicated by the words "shall be treated as final judgments to the extent possible," that appeals from new trial orders will not always subject the prior final judgment to review.

In the case before us, we are affirming the new trial order, which requires a new trial because of improper communication to a trial judge prior to judgment rather than requiring the ministerial task of entering final judgment. See Hill v. American Medical Affiliates, Inc., 387 So.2d 1056 (Fla. 2d DCA 1980). Substantive rights are clearly affected by a new trial. It is not...