AGRICULTURAL DELIVERY SERVICE, INC., ET AL., APPELLANTS,
v.
THE TRAVELERS INSURANCE COMPANY, A CORPORATION, APPELLEE
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Agricultural Delivery Service appealed a trial court order granting a new trial, arguing the trial judge misconstrued the appellate court's prior mandate directing reconstruction of an unreported trial record. The court held that the prior mandate only authorized reconstruction of testimony to resolve factual conflicts about what was said at the original trial, not a complete new trial on the merits.
The trial judge misconstrued the mandate. The prior order did not permit or direct a new trial; it authorized only reconstruction of original testimony to resolve conflicts about what was actually said, not to retry the case on its merits or reconsider the probative effect of the evidence.
[1] A prior appellate mandate directing the reconstruction of a trial record does not authorize the granting of a new trial.
[2] When a trial record has not been stenographically reported, the appellate court may remand for the purpose of perfecting and reconstructing the record.
Previewing 2 of 4 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“Obviously the trial judge misconstrued our prior mandate. It did not direct, nor did it permit, the granting of a new trial per se.”
The court's core holding that the trial judge exceeded the scope of the appellate mandate by granting an entirely new trial.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe original trial was not stenographically reported. On a prior interlocutory appeal, the appellate court remanded the case directing the trial court…
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ON MOTION TO QUASH APPEAL
A prior interlocutory appeal was granted herein and, in an opinion by Chief Judge Pierce (262 So.2d 210), the cause was remanded to the trial court with directions that the record of the trial be perfected and reconstructed. This was deemed necessary because the original trial had not been stenographically reported. Subsequent to our remand, however, the trial judge granted a new trial rather than reconstructing the record and in doing so made the following findings:
“1. That the Court has no independent recollection of the testimony of any witnesses at the trial of the cause;
2. That counsel cannot agree upon the testimony of the witnesses;
3. That the documentary evidence does not establish or assist in establishing the testimony of the witnesses; and
4. That the only available method of complying with the directions of the Second District Court of Appeal is to recall the trial witnesses as suggested by said Court in its opinion, which is in effect the granting of a new trial;
It is ORDERED in persuance (sic) of the direction given this Court, that the plaintiff be granted a new trial.”
It is from this order that this appeal is taken, against which appellee directs its motion to quash.
Obviously the trial judge misconstrued our prior mandate. It did not direct, nor did it permit, the granting of a new trial per se. 'Indeed, the parties had their day at trial. That portion of our previous opinion which indicated that testimony may be taken and that conflicts therein be resolved by the trial judge related not to an entire rehearing of the cause on its merits but instead merely to potential conflicts as to what the original witnesses may have said at the original trial. The conflicts in this regard, if any, may arise not only from the attorneys or others who heard the original testimony but also from the witnesses themselves. The question now is what was said, not the probative effect thereof which *430would be the concern at a new trial as it was at the first.
Accordingly, we deny the motion to quash; but considering this appeal on its merits we dispense with oral argument and in view of the foregoing remand the cause to the trial judge directing that he withdraw his order for new trial and simply follow our prior mandate to reconstruct the original testimony.
LILES, Acting C. J., HOBSON and Mc-NULTY, JJ„ concur.
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Citator
Cited By
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In re Adoption OF A. M. L., 297 So. 2d 840 (Fla. 2d DCA 1974)…e by Rule 3.6(f) F.A.R. of a means whereby the appellant may do so. See Travelers Insurance Co. v. Agricultural Delivery Service, Inc., Fla.App.2d 1972, 262 So. 2d 210; Agricultural Delivery Service, Inc. v. Travelers Insurance Co., Fla.App.2d 1972, 269 So. 2d 429. In the interest of this child’s welfare, we allow the appellant 30 days within which to furnish an adequate record. If the record of proceedings in the trial court must be reconstructed, additional time will be al [*841] lowed upon motion addresse…
Authorities Cited
- The Travelers Ins. Co. v. Agric. Delivery Serv., 262 So. 2d 210 (Fla. 2d DCA 1972)