Miami Transit Co. v. Ford

• Decision Date: 19 June 1963
• Docket Number: No. 32445,32445
• Citation: 155 So.2d 360
• Parties: MIAMI TRANSIT COMPANY, a Florida corporation, Petitioner, v. Walter M. FORD and Mabel Ford, his wife, Respondents.
• Court: Florida Supreme Court

Page 360

155 So.2d 360

MIAMI TRANSIT COMPANY, a Florida corporation, Petitioner, v. Walter M. FORD and Mabel Ford, his wife, Respondents.

No. 32445.

Supreme Court of Florida.

June 19, 1963.

Rehearing Denied July 18, 1963.

William H. Peeples and Kenneth L. Ryskamp, Miami, for petitioner.

Ray M. Watson, So. Miami, and Sam Daniels, Miami, for respondents.

THORNAL, Justice.

By a petition for writ of certiorari we are requested to review a decision of the District Court of Appeal, Third District, because of an alleged conflict with a decision of another district court of appeal on the same point of law.

The point for decision is whether a motion for a new trial, under Rule 1.4(d), Florida Rules of Civil Procedure, 30 F.S.A must be filed within the time prescribed for service of the motion by Rule 2.8(b), Florida Rules of Civil Procedure, 31 F.S.A.

The petitioner, Miami Transit Company, was the unsuccessful defendant in a damage action in the circuit court. The adverse verdict was rendered April 25, 1962. Judgment was entered April 30, 1962. A motion for new trial was served on opposing counsel on May 4, 1962. The motion was not filed in the trial court until May 10, 1962. An order denying the motion was entered May 14, 1962. Notice of appeal to the district court was filed July 12, 1962.

The Fords, who were the successful plaintiffs in the trial court and appellees in the district court moved to dismiss the appeal on the ground that the notice was filed 72 days after the rendition of judgment. The basis for the motion to dismiss was that, although the motion for new trial was served within 10 days after the verdict, it was not filed in the court within the 10 day period. The Fords contended that since the motion was not filed within this period, it was not timely and, therefore, did not toll the running of the appeal period following the rendition of the final judgment. F.A.R. 1.3, 31 F.S.A. This led to the conclusion that the notice of appeal was filed too late. The district court granted the motion to dismiss. By its decision it held that Rule 1.4(d) Florida Rules of Civil Procedure, requires that a motion for new trial must be filed in the trial court within the 10 day period prescribed for service thereof upon opposing parties under Rule 2.8(b), F.R.C.P. The district court concluded that the motion for a new trial was not timely and was, therefore, ineffective to toll the running of the 60 day appeal period. It held that the notice of appeal was filed too late. The appeal was dismissed. Miami Transit Company v. Ford, Fla.App., 149 So.2d 87.

The petitioner Miami Transit, seeks review by certiorari with the contention that the decision of the District Court of Appeal, Third District, in the instant case collides with a decision of the District Court of Appeal, First District, in Crovella v. Cocharane, Fla.App., 102 So.2d 307.

As a condition to a consideration of the merits of the matter, we must first look to the decision under review in order to ascertain whether there is a jurisdictional conflict between the decision of the two district courts. If a conflict is revealed by this examination, we may then proceed to determine the merits of the opposing contentions.

In Crovella, the District Court of Appeal, First District, held that the filing of a motion under Rule 1.4(d) is not a critical jurisdictional requirement and may be waived in the trial court. It further held that failure to file a motion will not be fatal unless it results in some harm or injury to the opposing party. In the instant case the District Court of Appeal, Third District, held that, as a matter of law, a motion must be filed within the time specified for service on opposing party. It held that a failure to file within the time stated is fatal to any subsequent judicial consideration of the motion. It further disregarded the aspect of the necessity for resultant harm to an opposing party because of a failure to file a motion in the court despite the fact that it had been duly served within the prescribed period. It appears, therefore, that the two district courts are at variance with regard to the essentiality of filing a motion within the time prescribed by the fule for the service thereof. One court holds that filing within the period of service is essential to the validity of the motion. The other court holds that filing is not an essential jurisdictional prerequisite but that it may be waived and in all events will not be considered fatal if harm to the opposing party does not result. We, therefore, detect a conflict of decision on the same point of law. Consequently, we find that we have jurisdiction to proceed to consider the merits.

Rule 2.8(b) F.R.C.P., provides:

'A motion for a new trial, or a motion for rehearing in matters heard without a jury or rehearing of any motion for judgment provided for by these rules, shall be served not later than 10 days after the rendition of verdict or the entry of a summary judgment.' (Emphasis added.)

Rule 1.4(d), F.R.C.P., regarding the filing of papers provides as follows:

'All original papers, copies of which are required to be served upon parties, shall be filed with the court either before service or immediately thereafter.' (Emphasis added.)

When the two rules are placed in juxtaposition, it will be observed that the critical 10 day period applies to the service of a motion for a new trial. The filing requirement is met if it is accomplished either before service or 'immediately thereafter.' We do not find in the rules a requirement for filing within the critical 10 day service period as indicated by the strict interpretation announced by the district court.

The point is extremely important when applied to a motion for a new trial. This is so because a judgment is not deemed to have been rendered so as to establish the beginning of the appeal period where 'there has been a timely and proper motion * * * for a new trial * * *' In this situation the judgment 'shall not be deemed rendered until such motion * * * is disposed of.' F.A.R. Rule 1.3.

In substantial measure the Florida Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure. Admittedly, there are some differences occasioned primarily by our continued recognition of certain procedural distinctions between law and equity. However, the objective in promulgating the Florida rules has been to harmonize our rules with the federal rules to the extent possible. Rule 5(d), Federal Rules of Civil Procedure, is analogous to ...