Francisco Negron, Petita Negron, Cindy Negron, and Shirley Negron v. Nellie Hessing and George Hessing, her husband

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FRANCISCO NEGRON, PETITA NEGRON, CINDY NEGRON, and
SHIRLEY NEGRON,
Appellants,
v.
NELLIE HESSING and GEORGE HESSING, her husband,
Appellees.
Nos. 4D13-4700 and 4D13-4748
[March 23, 2016]
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case
No. 06-1599 (14).
Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, Fort
Lauderdale, for appellants.
Daniel S. Weinger of The Weinger Appellate Firm, Plantation, for
appellees.
DAMOORGIAN, J.
Francisco, Petita, Cindy, and Shirley Negron (“Defendants”) appeal: (1)
an order granting Nellie and George Hessing’s (“Plaintiffs”) motion for new
trial; and (2) an order denying Defendants’ motion to vacate the order
granting Plaintiffs’ motion for new trial. We reverse the order granting
Plaintiffs’ motion for new trial because the trial court had no jurisdiction
to rule on the motion. As such, the appeal of the order denying the motion
to vacate is rendered moot.
Plaintiffs sued Defendants for personal injuries arising out of an
automobile accident. The case proceeded to a jury trial where Defendants
prevailed. During the trial, Plaintiffs orally moved for a mistrial which the
court denied. After the jury rendered its verdict and was discharged, but
before the court entered a final judgment, Plaintiffs again orally asked the
court about their prior motion for mistrial and the court replied “I denied
it.” Plaintiffs then renewed their motion for mistrial, noting that if the
court was inclined to deny that motion again, then Plaintiffs moved for a
new trial. The court responded: “My ruling stands and I will deny the
motion for new trial.”
Despite the court’s oral ruling on Plaintiffs’ motion for new trial, eleven
days after the jury verdict, Plaintiffs filed a written motion for new trial.
Defendants filed their response to Plaintiffs’ motion, noting that the court
had already ruled on the motion and that the written motion did not raise
any new grounds for new trial. The court did not address the written
motion and instead entered a final judgment in Defendants’ favor in
accordance with the jury verdict. Plaintiffs did not appeal the final
judgment and the case sat largely dormant for two years.
Two years later and after the presiding judge who denied the motion for
new trial had left the civil division, Plaintiffs set their motion for new trial
before a successor judge. After hearing oral argument on the motion, the
successor judge granted the motion and ordered a new trial. In doing so,
the successor judge acknowledged that the motion had been orally denied
by his predecessor but nonetheless concluded:
I just don’t think that a quickie, you know, adoption of a motion
for a mistrial immediately after a verdict is either presented to
the Court with enough time to reflect on it and with any
additional grounds or grounds to consider that were presented
in the written motion for new trial, which was not objected to
until after I said I was going to grant it. And while I think
counsel is right, though, I mean, it’s either there or it’s not
as far as jurisdiction. You know, I don’t think it would be fair
for anybody . . . .
Defendants moved to vacate the order, again pointing out that the trial
judge had denied the motion and, therefore, the successor judge had no
jurisdiction to reconsider the motion. The court denied the motion to
vacate and this appeal follows.
On appeal, Defendants argue that the successor judge lacked
jurisdiction to consider Plaintiffs’ motion for new trial in light of the trial
judge’s prior ruling on the motion.1 Plaintiffs counter that the successor
judge was well within his authority to grant the motion because the trial
judge never entered a formal order denying the motion and therefore the
motion remained pending.
1 Because we conclude that successor judge had no jurisdiction to rule on
the motion for new trial, we need not address Defendants’ alternative argument
that the motion should have been denied on the merits.
2
The Florida Rules of Civil Procedure do not provide for successive
motions. Rule 1.100(b), which governs motions, specifically provides that
“[a]n application to the court for an order shall be by motion which shall
be made in writing unless made during a hearing or trial, shall state with
particularity the grounds therefor, and shall set forth the relief or order
sought.” Fla. R. Civ. P. 1.100(b) (emphasis added). Accordingly, when
Plaintiffs orally moved for new trial, they elected to forgo the option of filing
a written motion. See id. The trial judge, in turn, orally denied the ore
tenus motion. This ruling properly disposed of the motion for new trial.
See State ex rel. Mann v. N. Fla. Raceway, Inc., 316 So. 2d 311, 312 (Fla.
1st DCA 1975) (holding that appellants were not authorized to file a
successive written motion for new trial after the trial court orally denied
their ore tenus motion for same); see also Hampton v. State, 949 So. 2d
1197, 1199 n.1 (Fla. 4th DCA 2007) (noting that the general rule that an
order does not become effective until it is signed and filed “does not apply
when the parties are present to hear the order”). Accordingly, once the
trial judge orally ruled on Plaintiffs’ motion for new trial, both the trial
judge and successive judge were without authority to thereafter reconsider
the matter. See Collins v. Douglass, 874 So. 2d 629, 630 (Fla. 4th DCA
2004) (holding that “following the initial denial of the motions for new trial
or additur, the trial court was without authority to rehear the matter”).
We likewise bring to the attention of the trial court that, in any event,
once the final judgment was entered, the written motion was deemed
denied. See City of Plant City v. Mann, 400 So. 2d 952, 954 (Fla. 1981) (“If
the relief sought by a pending motion is inconsistent with the final
judgment of the Court, the motion is deemed denied. On the other hand,
if the relief sought by the pending motion is consistent with the Court’s
final judgment, the motion may be deemed to have been impliedly
granted.”). But see Vacation Escape, Inc. v. Mich. Nat’l Bank, 735 So. 2d
528, 529–30 (Fla. 4th DCA 1999) (recognizing an exception to this general
rule when the pending motion is a motion to set aside a clerk’s default).
Plaintiffs’ remedy at that point was to appeal the final judgment.
Reversed.
MAY AND GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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