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Abram v. Wolicki11/12/2003
Leon J. Abram, M.D. and Leon J. Abram, M.D., P.A., (collectively "Abram") appeal from the trial court's sua sponte order granting Anthony Wolicki a new trial. We reverse.
This appeal arises from a medical malpractice case filed by Wolicki against Abram in which Wolicki alleged that Abram deviated from the accepted standard of care in performing a cervical fusion. The issue of liability was hotly contested. After a week-long jury trial, the jury returned a verdict finding that Abram was not negligent. The verdict was rendered on April 15, 2002. On April 25, 2002, Wolicki filed a timely motion for new trial and the hearing was scheduled for May 24, 2002. In the interim, on April 29, 2002, the trial court entered a final judgment in Abram's favor.
After hearing argument on the motion for new trial, the trial court entered an order on June 11, 2002, denying Wolicki's motion for new trial. Thereafter, on June 20, 2002, Wolicki filed a motion for rehearing regarding his motion for new trial. Abram filed a response in opposition to Wolicki's motion for rehearing arguing that the motion for rehearing was unauthorized. On July 2, 2002, the trial court entered an order denying Wolicki's motion for rehearing regarding his motion for a new trial; however, the trial court withdrew the previous order denying the motion for new trial, and substituted a new order granting Wolicki's motion for new trial. Abram argues that under the Florida Rules of Civil Procedure, Wolicki was not authorized to file a motion for rehearing on the denial of his motion for new trial and that the trial court could not sua sponte vacate the order denying the motion for new trial and enter an order granting it. We agree.
Florida Rule of Civil Procedure 1.530 provides for motions for new trial or motions for rehearing. There is no authorization for motions for rehearing on motions for new trials. See Fiber Crete Homes, Inc. v. Div. of Admin., 315 So. 2d 492 (Fla. 4th DCA 1975). In Fiber Crete, the Department of Transportation had instituted a suit for eminent domain against Fiber Crete. A final judgment was rendered in favor of Fiber Crete, and within ten days the Department filed a motion for new trial. The trial court denied the motion. Within ten days of that order, the Department filed a motion for a "limited rehearing of new trial motion" calling the trial court's attention to a case decided several months before, which affected the decision. The trial court denied the motion for rehearing but proceeded sua sponte under Florida Rule of Civil Procedure 1.540(b) to amend the order denying the motion for new trial by granting it.
In Fiber Crete, this court held:
The trial court correctly recognized that it had no authority to entertain or consider a subsequently filed motion or petition for rehearing directed to a denial of a new trial. DePadro v. Moore, Fla.App. 1968, 215 So. 2d 27; Volumes in Value, Inc. v. Buy Mail International, Inc., Fla.App. 1965, 177 So. 2d 511. Simply stated, there is no provision in the rules of civil procedure for a rehearing of a denial of a motion for a new trial and rehearing. The trial court, therefore, appropriately denied plaintiff's motions "for limited rehearing".
Id. at 493. Thus the trial court in the instant case was correct in denying Wolicki's motion for rehearing regarding his motion for new trial.
This court then held with respect to the trial court's reversing itself and granting the new trial:
However, the court then proceeded on its own motion to grant a new trial under Rule 1.540(b) predicating its action on the authority of In re Estate of Weymer, Fla.App.1967, 199 So.
Page 1 2 Florida Personal Injury Attorneys
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