BIRD LAKES DEVELOPMENT CORP., APPELLANT,
v.
HOMERO MERUELO AND GESYL DEVELOPMENT CORP., APPELLEES
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Bird Lakes Development Corp. appealed a non-final order vacating a remittitur order. The court affirmed, holding that the trial court had proper jurisdiction under Florida Rule of Civil Procedure 1.540 to correct mathematical errors, inadvertent omissions, and other mistakes in the remittitur order.
The trial court had jurisdiction under Florida Rule of Civil Procedure 1.540(a) and (b) to vacate the remittitur order and correct errors arising from oversight, omission, and inadvertence, including the mathematical error in calculating remittitur, the inadvertent vacation of attorney's fees jurisdiction, and other mistaken terms contrary to the trial judge's instructions.
[1] A trial court has jurisdiction under Fla.R.Civ.P. …
[2] A significant mathematical error in a remittitur order can be corrected by the trial court under Fla.R.Civ.P. …
Previewing 2 of 5 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“the trial court had jurisdiction under Fla.R.Civ.P. 1.540(a), (b) to vacate the prior remittitur order and, in a later order, to correct "errors [in the remittitur order] arising from oversight or omission" as well as other "mistake[s] [or] inadvertence"”
Establishes the core holding that Rule 1.540 permits trial courts to correct remittitur orders for various types of errors and inadvertent mistakes.
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Join FLexlaw to unlock all legal intelligenceThe trial court issued a remittitur order following a post-trial motion, but the order contained several errors: a significant mathematical error in c…
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PER CURIAM.
This is an appeal from a non-final order which vacates a final order granting a post-trial motion for a remittitur or new trial. We have jurisdiction to entertain this appeal, Art. V, § 4(b)(1), Fla. Const.; Fla.R. App.P. 9.130(a)(4).
We affirm the order under review based on a holding that the trial court had jurisdiction under Fla.R.Civ.P. 1.540(a), (b) to vacate the prior remittitur order and, in a later order, to correct “errors [in the remittitur order] arising from oversight or omission” as well as other “mistake[s] [or] inadvertence,” namely, (1) a significant mathematical error in the remittitur order as to the amount of the remittitur, so as to comport with the implicit mutual agreement of the parties made in open court at the hearing on the post-trial motion for a remittitur, (2) an inadvertent vacation of the final judgment’s retention of jurisdiction to award attorney’s fees and costs, when that issue was not even before the court on any of the parties’ post-trial motions, and (3) certain other mistaken terms of the order which, when taken together with the two mistaken terms previously discussed, were all contrary to the trial judge’s oral instructions to appellant’s trial counsel, who drafted the order, as to what the order should contain.1 Wheeler Fertilizer Co. v. Rogers, 49 So. 2d 83, 86-87 (Fla.1950); Marks v. Wertalka, 475 So. 2d 273, 274 n. 2 (Fla. 3d DCA 1985); Marx v. Redd, 368 So. 2d 101, 103 (Fla. 4th DCA 1979).
In so ruling, we agree (1) that the remittitur order could not be vacated and corrected by the trial court except, as here, pursuant to Fla.R.Civ.P. 1.540, Salkay v. State Farm Mut. Auto. Ins. Co., 398 So. 2d 916, 917 (Fla. 3d DCA), rev. dismissed, 402 So. 2d 612 (Fla.1981); see also Frazier v. Seaboard System R.R., 508 So. 2d 345, 347 (Fla.1987); Gordon v. Richter, 528 So. 2d 374, 376 (Fla. 3d DCA 1987), rev. denied, 525 So. 2d 880 (Fla.1988); (2) that appellee’s bare-bones emergency motion to modify and correct the remittitur order was, in substance, a motion to vacate based on Fla.R.Civ.P. 1.540, when considered with the argument made in support thereof,. Kitchens v. Kitchens, 519 So. 2d 1142, 1143 (Fla. 2d DCA 1988); and (3) that Capital Bank v. Knuck, 537 So. 2d 697 (Fla. 3d DCA 1989) and State ex rel. Cantera v. District Court of Appeal, Third Dist., 555 So. 2d 360 (Fla.1990), relied on by appellant, are inapplicable to this case, given the trial court’s jurisdiction to vacate the remittitur order under Fla.R.Civ.P. 1.540, as discussed above.
Affirmed.
. According to an affidavit filed by the trial judge in this court, the trial judge’s oral instructions to appellant’s counsel as to what the order should contain were conveyed in an ex parte telephone call which the judge had with appellant’s trial counsel. In our view, these instructions should either have been made in a conference telephone call with both parties’ trial counsel or in open court; moreover, appellant's trial counsel should further have supplied appellee’s trial counsel with a copy of the proposed order, with sufficient opportunity for counsel to object thereto, prior to submitting the order to the trial judge for his signature. If these procedures had been followed, the inadvertent mistakes in the subject order would most likely have been avoided. We trust that in the future ex parte communications of this nature will not be repeated as, in our view, they are clearly improper. See Fla.Bar Code Jud.Conduct, Canon 3(A)(4); see also Smith v. Smith, 558 So. 2d 440, 441 (Fla. 4th DCA 1990).
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Jarrouge v. Hanna, 611 So. 2d 1374 (Fla. 3d DCA 1993)…PER CURIAM. Affirmed. Jarrouge v. Hanna, 596 So. 2d 153 (Fla. 3d DCA 1992). Fla.R.Civ.P. 1.540(a); see also Bird Lakes Development Corp. v. Meruelo, 582 So. 2d 119 (Fla. 3d DCA 1991); Marks v. Wertalka, 475 So. 2d 273 (Fla. 3d DCA 1985).…
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Tuten v. Cincinnati Ins. Co., 743 So. 2d 617 (Fla. 1st DCA 1999)…PER CURIAM. AFFIRMED. See State Farm Mut. Auto. Ins. Co. v. LaForet, 586 So. 2d 479 (Fla. 4th DCA 1991); Bird Lakes Dev. Corp. v. Meruelo, 582 So. 2d 119 (Fla. 3d DCA 1991). BOOTH, MINER and VAN NORTWICK, JJ., CONCUR.…
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Lopez v. Martin, 995 So. 2d 1088 (Fla. 3d DCA 2008)…be remedied ‘at any time’ pursuant to Florida Rule of Civil Procedure 1.540(a).” 475 So. 2d at 274. In another case, we held that the trial court has jurisdiction in such circumstances under Rule 1.540(a) and (b). Bird Lakes Dev. Corp. v. Meruelo, 582 So. 2d 119 (Fla. 3d DCA 1991). The trial court had given instructions to the prevailing side to draft an order and told counsel what the order should contain. Id. at 120. When counsel drafted the order, the order did not comply with what the judge had stated b…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frazier v. Seaboard Sys. R.R., Inc., 508 So. 2d 345 (Fla. 1987)
- Cap. Bank v. The Honorable Francis X. Knuck, 537 So. 2d 697 (Fla. 3d DCA 1989)
- State of Fla. ex rel. Eduardo Cantera v. Dist. Court OF Appeal, 555 So. 2d 360 (Fla. 1990)
- Wheeler Fertilizer Co. v. Rogers, 49 So. 2d 83 (Fla. 1950)
- Salkay v. State Farm Mut. Auto. INS. Co., 398 So. 2d 916 (Fla. 3d DCA 1981)
- Zatler v. State, 368 So. 2d 101 (Fla. 3d DCA 1979)
- Marks v. Wertalka, 475 So. 2d 273 (Fla. 3d DCA 1985)
- Kitchens v. Kitchens, 519 So. 2d 1142 (Fla. 2d DCA 1988)
- Smith v. Smith, 558 So. 2d 440 (Fla. 4th DCA 1990)
- Reserve Acquisitions, Inc. v. Goldome, FSB, 528 So. 2d 374 (Fla. 3d DCA 1987)