Pensacola Chrysler-Plymouth, Inc. v. Costa, CHRYSLER-PLYMOUT

• Court: Court of Appeal of Florida (US)
• Writing for the Court: WIGGINTON; RAWLS, C.J., and CARROLL, DONALD K.
• Citation: 195 So.2d 250
• Parties: PENSACOLA, a Florida corporation, Appellant, v. Joe G. COSTA et al., Appellees.
• Docket Number: No. I--235,INC,CHRYSLER-PLYMOUT,I--235
• Decision Date: 21 February 1967

Page 250

195 So.2d 250 PENSACOLA CHRYSLER-PLYMOUTH, INC., a Florida corporation, Appellant,
v.
Joe G. COSTA et al., Appellees. No. I--235. District Court of Appeal of Florida, First District. Feb. 21, 1967.

Page 251

Holsberry, Emmanuel, Sheppard & Mitchell, Pensacola, for appellant.

William H. Anderson, Pensacola, for appellees.

WIGGINTON, Judge.

Defendant in the trial court seeks review of a post-trial order rendered in an action at law granting plaintiffs' motion for rehearing, the effect of which is to set aside the judgment theretofore entered in the cause so that additional testimony upon the issues may be taken and a further determination made as to the judgment to be rendered.

This action is one at law by which plaintiffs seek a judgment for damages resulting from injuries they sustained which were proximately caused by the alleged negligence of defendant. Trial by a jury was waived and the case tried to the judge sitting as a trier of both the law and the facts. At the conclusion of the trial judgment was entered in favor of defendant.

Within ten days following rendition of the judgment against them, plaintiffs filed and served their motion for rehearing by which they prayed for an order setting aside the judgment and reopening the case for the taking of additional testimony if such is deemed necessary, assigning as grounds in support thereof that the judgment of the court is contrary to the law, contrary to the evidence, and contrary to the preponderance of the evidence. Upon consideration of the foregoing motion the order appealed herein was entered. An examination of the order reveals that it states no ground or grounds relied upon by the court in granting the motion for rehearing.

It is appellant's sole contention that the order granting rehearing and setting aside the judgment is in effect an order granting a new trial and should be reversed because it contains no specific grounds upon which the motion was granted as required both by statute and by the rules of practice.

The pertinent statute governing the granting of new trials provides as follows:

'* * * In every case in which the trial court shall enter an order granting a motion for a new trial, the trial judge shall indicate in the order granting said motion the particular ground or grounds upon which said motion was granted, and upon appeal from any such order, if taken under the statutes providing for appeal from orders granting new trials, no other grounds than those specified by the trial judge, as a basis for the order granting the new trial, shall be considered as arguable upon said appeal.' ¹

Upon the advent of the new rules of civil procedure which first became effective in Florida in January, 1950, 31 F.S.A., the above-quoted statute relating to an order granting a new trial was implemented by a

Page 252

rule of procedure which in its present form is as follows, to wit:

'Rule 2.8 Motions for New Trials; Rehearing; Amendments of Judgments

'(a) Jury and Non-Jury Cases. A new trial may be granted to all or any of the parties and on all or a part of the issues. On a motion for a rehearing of matters heard without a jury, the court may open the judgment if one has been entered, take additional testimony and enter a new judgment.

'(b) Time for Motion. 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 such judgment. A timely motion may at the discretion of the court be amended to state new grounds at any time before it is disposed of.

'(c) Time for Serving Affidavits. When a motion for a new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.

'(d) On Initiative of Court. Not later than 10 days after entry of judgment, or within the time of ruling on a timely motion for a rehearing of non-jury matters or a timely motion for a new trial made by a party in actions tried by a jury, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.

'(e) When Motion for Unnecessary; Non-Jury Case. Where an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal by an assignment of error whether or not the party raising the question has made any objection thereto in the trial court, or made a motion for...