Stupp v. Cone Bros. Contracting Co., 2619

• Decision Date: 22 November 1961
• Docket Number: No. 2619,2619
• Citation: 135 So.2d 457
• Parties: Bargara Joyce STUPP, Appellant, v. CONE BROTHERS CONTRACTING COMPANY, a corporation, Robert Lee Dicks and William Mitchell, Appellees.
• Court: Florida District Court of Appeals

Page 457

135 So.2d 457

Bargara Joyce STUPP, Appellant, v. CONE BROTHERS CONTRACTING COMPANY, a corporation, Robert Lee Dicks and William Mitchell, Appellees.

No. 2619.

District Court of Appeal of Florida, Second District.

Nov. 22, 1961.

Rehearing Denied Dec. 18, 1961.

Muscarella & Perenich, Clearwater, for appellant.

Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellee Cone Bros. Contracting Co.

KANNER, Acting Chief Judge.

A motion made by defendant-appellee Cone Brothers Contracting Company to dismiss the appeal sought by plaintiff-appellant, Barbara Joyce Stupp, is the subject under consideration by this court. The motion is principally predicated upon the ground that the notice of appeal of June 19, 1961, was not filed within the time provided by law, thus leaving this court without jurisdiction to entertain the appeal.

Forerunner to the appeal notice objected to by defendant was one filed on May 8, 1961, for the purpose of having this court review an order entered by the trial court on March 20, 1961, subsequent to final judgment in defendant's favor of August 31, 1960. The order for which review was then requested resulted from a motion duly filed by plaintiff on September 6, 1962, styled 'Motion to Set Aside the Verdict and any Judgment Thereon for Judgment and in the Alternative for a New Trial.' By order of March 20, 1961, the trial court denied the motion for new trial but did not rule upon the one for judgment notwithstanding the verdict. Upon motion of defendant, this court dismissed that appeal, docketed as case number 2540, on June 20, 1961, since it only sought review of the order denying motion for new trial.

Meanwhile, plaintiff's counsel by letter of June 1, 1961, and called attention of the trial judge to the fact that the order denying motion for new trial did not comprehend the motion to set aside the verdict and judgment entered thereon and to enter judgment for plaintiff pursuant to motion for directed verdict. Hearing was had on the matter; and over defendant's objection, the court on June 16, 1961, entered an order 'Correcting and Clarifying the Order of March 20, 1961.' The situation as it had arisen was detailed; then the order indicated that it was being entered so as to permit the record to reflect more completely the action of the court on March 20, 1961, when the motion of plaintiff in their entirety were denied, since the order when reduced to writing inadvertently failed to encompass the complete ruling of the court. It was accordingly ordered that the motions were both denied nunc pro tunc, as of March 20 1961. Three days later, on June 19, 1961, plaintiff filed notice of appeal in the present case, seeking review both of the final judgment of August 31, 1961, and of the order of clarification entered on June 16, 1961.

Both parties submit that the basic question, whether under these circumstances the appeal should be dismissed, is a matter not yet decided in Florida. Consequently, the authorities cited are from other jurisdictions. Plaintiff advances the position adhered to by the federal court in the case of Green v. Reading Co., 3rd Cir., 1950, 180 F.2d 149, chaiming it to be an authoritative basis for denial of defendant's motion to dismiss.

Defendant contracting company, on the other hand, stresses as a better precedent the rationale followed by the Nebraska Supreme Court in the case of Lund v. Holbrook, 1951, 153 Neb. 706, 46 N.W.2d 130, upon which this court is urged to dismiss the appeal. Defendant asserts untimeliness of the notice of appeal, stating that it was filed 91 days after the order of March 20, 1961, denying motion for new trial, which order, it is contended, had the effect of also disposing of the other motion. To further bolster this position, defendant also makes reference to the nunc pro tunc provision of the trial judge's order of June 16, 1961. It is noted at this juncture that the language of subdivisions (b) and (c) of rule 2.7, Florida Rules of Civil Procedure 31 F.S.A., ¹ is, for all practical purposes and with almost no alteration, identical to rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A., after which they were fashioned.

In the federal jurisdictions the position adopted in construction of F. R. Civ. P. rule 50(b) is under the procedure charted by the case of Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. The situation before the court in that case was one wherein the trial court, after granting defendant's motion for judgment n.o.v., had refused to rule on the motion for new trial. The court of appeals, reversing, had directed that judgment be entered on the verdict but had made no provision for a ruling on the motion for new trial. The question presented to the Supreme Court of the United States was whether the court of appeals erred in failing to remand the cause to the trial court for disposition of the motion for new trial. It was held that the granting of motion for judgment n.o.v. did not constitute an automatic denial of the motion for new trial, and the cause was remanded for a decision on that motion.

The federal court system seems clearly to require as to a problem such as the one here posed that the lower court should rule upon both motions. In the federal case of Green v. Reading Co., supra, contended for by plaintiff as controlling, defendant had moved for new trial and for judgment in accordance with its previous motion for directed verdict. The motion for new trial was denied, but the motion for judgment was not ruled upon. It was held that the motions operated to vest the trial judge with a continuation of control over the judgment and that, until the motions are disposed of, the judgment does not become final for purposes of appellate review since there is lacking the ultimate decision required for appellate jurisdiction. The court emphasized the Montgomery Ward v. Duncan case and directed the attention of its Bar to the fact that the proper procedure under rule 50(b) had been prescribed by that case.

Several state jurisdictions have aligned themselves with the federal position. See Ross v. Arrow Manufacturing Company, 1957, 134 Colo. 530, 307 P.2d 196, 69 A.L.R.2d 445; Reading v. Faucon, D.C.Mun. App.1957, 134 A.2d 376; Zugsmith v. Mullins, 1956, 81 Ariz. 185, 303 P.2d 261. Attention is invited to certain other authorities discussing this problem. See Barron & Holtzoff, Federal Practice and Procedure, volume 2B, section 1082, p. 430; Moore's Federal Practice, volume 5, section 50.12, p. 2341; Annotation, 69 A.L.R.2d, section 30(a), p. 525; and annotations contained within the Lawyers Edition of the Supreme Court Reports at 97 L.Ed. 78, section 10, p. 98, and 85 L.Ed. 155.

While it is true that rule 2.7(b) and (c) have not been construed by the courts of Florida insofar as the precise question presented here is concerned, the Florida Supreme Court, in the case of Atlantic Coast Line Railroad Company v. Boone, 1956, 85 So.2d 834, 57 A.L.R.2d 1186, set out certain aspects of the relationship between rule 2.7, Florida Rules of Civil Procedure, formerly Common Law rule 40, and rule 50, Federal Rules of Civil Procedure, in effect aligning itself with the federal courts as to the appellate jurisdictional question with which the court found itself confronted. Describing as 'very helpful' the Montgomery Ward v. Duncan opinion, the court, among other things, considered the matter of the proper time for appellate review of an order denying a motion for directed verdict, citing also Barron & Holtzoff on Federal Practice and Procedure, volume 2, section 1081, and Moore's Federal Practice, 2nd edition, volume 5, section 50.14. The Supreme Court, through Mr. Justice Thornal, pointed out that post-trial motions such as motion for directed verdict and motion for judgment notwithstanding the verdict being interlocutory in nature, could not support an appeal in the absence of specific statutory authorization; but the court indicated that such orders are subject to review at the proper time, which is following entry of the final judgment ultimately disposing of the cause. It was emphasized that the appeal must be from the final judgment rather than from the order denying the motion.

Additionally, there appeared within two weeks of each other two recent cases of the First District Court of Appeal, each of which pointed out the similarity of the federal rule and that of Florida and each of which cited for support the Montgomery Ward v. Duncan decision.

The first of those cases, that of King v. Jacksonville Coach Company, Fla.App., 1960, 122 So.2d 480, is one wherein the defendant, subsequent to jury verdict for plaintiff, moved for a judgment in accordance with its prior motion for directed verdict, or in the alternative, moved for a new trial. The trial judge entered an order granting the motion for judgment for the defendant and providing, additionally, that if the judgment were reversed on appeal, then the alternative motion for new trial was to be granted. Appeal taken to the district court from that order subsequent to final judgment resulted in reversal of the judgment based upon the renewed motion for directed verdict, the court holding that the alternative order granting new trial was within the broad discretion of the trial court and that it should not be disturbed on appeal. The district court stated that the trial court, under the language of rule 2.7, Florida Rules of Civil Procedure, 31 F.S.A., might grant either of the motions but not both. The court continued, however, that the trial judge was nevertheless correct in ruling on both motions in the alternative manner employed, basing this upon a consideration of Official Form Six promulgated by the Florida Supreme Court for use by the bar in connection with rule 2.7 together with the decisions of the federal courts under their similar Rule 50, Federal Rules fo Civil Procedure, 28 U.S.C.A.

In the second...