FLORIDA POWER AND LIGHT COMPANY, APPELLANT,
v.
RICHARD C. LUBIN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BETTE L. ACKERMAN, DECEASED, AND WILLI ACKERMAN, APPELLEES
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Florida Power and Light Company appeals from an order vacating a summary judgment in its favor. The trial court set aside the summary judgment based on the plaintiff's claim of newly discovered evidence—testimony from the plaintiff's own prior criminal trial. The appellate court reversed, holding that evidence from one's own criminal trial cannot be considered newly discovered evidence under Rule 1.540(b).
Evidence at one's own criminal trial growing out of an incident forming the basis for a related civil suit cannot be considered newly discovered evidence under the circumstances presented. Therefore, the trial court erred in setting aside the prior summary judgment in favor of FPL.
[1] Evidence presented at a defendant's own prior criminal trial, arising from the same incident as a related civil suit, cannot be considered newly discovered evidence for p…
[2] A motion to vacate a summary judgment based on newly discovered evidence must demonstrate that the evidence could not have been discovered by due diligence in a more time…
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Evidence at one's own criminal trial growing out of an incident forming the basis for a related civil suit cannot, under the circumstances of this case, be considered newly discovered.”
The court's holding that testimony from the plaintiff's own prior criminal trial does not qualify as newly discovered evidence under Rule 1.540(b).
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff brought a wrongful death suit against Florida Power and Light Company and others following his wife's death. The trial court granted summary…
The full statement of facts, procedural history, and disposition for this case are member content.
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BERANEK, Judge.
This is an interlocutory appeal from the grant of a motion made pursuant to Rule of Civil Procedure 1.540(b).
We have jurisdiction pursuant to Rule of Appellate Procedure 9.130(a)(5).
The present civil action is a suit by plaintiff/appellee against Florida Power and Light Company, among others, for the alleged wrongful death of his wife. Plaintiff moved to vacate a prior summary judgment entered in favor of Florida Power and Light Company. The motion to vacate was based upon newly discovered evidence which allegedly could not have been discovered by due diligence in a more timely fashion. The motion to vacate pursuant to Rule of Civil Procedure 1.540(b) was filed almost nine months after the defendant’s summary judgment. The newly discovered evidence alleged in the motion to vacate constituted testimony given by a witness in a prior criminal trial where the plaintiff had been prosecuted for the alleged murder of his wife.
Plaintiff asserts that the testi mony at his own prior criminal trial was not subject to his own discovery because he did not secure a transcript of that testimony at the time.
We conclude that the trial court erred in setting aside the prior summary judgment. Evidence at one’s own criminal trial growing out of an incident forming the basis for a related civil suit cannot, under the circumstances of this case, be considered newly discovered. See Kash N’Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So. 2d 786 (Fla. 2d DCA 1969). The order below is reversed and the cause remanded for further proceedings which shall include reinstatement of the prior summary judgment.
LETTS, C. J., and HERSEY, J., concur.
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- Rash N'Karry Wholesale Supermarkets, Inc. v. Ceasar V. Garcia, 221 So. 2d 786 (Fla. 2d DCA 1969)