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To succeed on a motion for new trial, the moving party must establish that the court has made reversible error that prejudiced the movant. “Reversible error occurs when an instruction is not only an erroneous or incomplete statement of the law, but is also confusing or misleading.” Gross v. Lyons, 721 So.2d 304, 306 (Fla. 4th DCA 1998). Additionally, the prejudice from the trial must be of a significant enough nature that it could “compromise the fairness of the proceedings such that a new trial would be required.” Gutierrez v. Vargas, 239 So.3d 615, 629 (Fla. 2018).

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To succeed on a motion for new trial, the moving party must establish that the court has made reversible error that prejudiced the movant. “Reversible error occurs when an instruction is not only an erroneous or incomplete statement of the law, but is also confusing or misleading.” Gross v. Lyons, 721 So.2d 304, 306 (Fla. 4th DCA 1998). Additionally, the prejudice from the trial must be of a significant enough nature that it could “compromise the fairness of the proceedings such that a new trial would be required.” Gutierrez v. Vargas, 239 So.3d 615, 629 (Fla. 2018).

In order to succeed on a motion for new trial based on new evidence, the movant must establish that the existence of the new evidence was not known by the party at the time of trial, the new evidence could not have been discovered by the party at the time of trial by the use of diligence, and the new evidence is likely to produce an outcome in favor of the moving party. Bogle v. State, 213 So.3d 833, 850 (Fla. 2017)(citing Marek v. State, 14 So.3d 985, 990 (Fla. 2009)).

The standard of review on appeal for an order granting or denying a motion for new trial is abuse of discretion on the question of whether there was sufficient evidence to support the jury verdict and determination, while a trial court’s conclusions of law are reviewed de novo. Van v. Schmidt, 122 So.3d 243 (Fla. 2013); Heartland Express, Inc. of Iowa v. Farber, 230 So. 3d 146, 150 (Fla. 1st DCA 2017); Campbell v. Griffith, 971 So. 2d 232, 235 (Fla. 2d DCA 2008); Diageo Dominicana, S.R.L. v. United Brands, S.A., 314 So. 3d 295 300 (Fla. 3d DCA 2020); The Hertz Corp. v. Gleason, 874 So. 2d 1217, 1219 (Fla. 4th DCA 2004); Hinton v. Supervision Intern., Inc., 942 So. 2d 986, 911 (Fla. 5th DCA 2006)

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2 Issues And Considerations

(1) If the moving party is “not prejudiced” by the issue, then the court must deny the motion for new trial. Montgomery v. State, 2022 WL 1160664, *3 (Fla. 4th DCA Apr. 20, 2022).

(2) The moving party must have timely objected to an argument in order to later object to the argument in its motion for new trial. However, there is an exception allowing a party to challenge an “unobjected-to argument,” but only if the argument was “improper, harmful, incurable and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1031 (Fla. 2000).

(3) When a movant argues for a new trial based on new evidence, the court “should not grant a new trial . . . unless the . . . court finds it credible. Buck v. State, 335 So.3d 221, 223 (Fla. 1st DCA 2022).

(4) “[T]he beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014).

(5) For a motion for new trial to be granted based on new evidence, the new evidence cannot have been known to the party during trial or unknown during trial due to negligence, and the evidence must be “of a nature that would likely produce an acquittal at trial.” Stephens v. State, 331 So.3d 1241, 1253 (Fla. 1st DCA 2022).

(6) “The rule is firmly established in this State that the trial Court loses jurisdiction of a cause after a judgment or final decree has been entered and the time for filing petition for rehearing or motion for new trial has expired or same has been denied.” Liberty Ins. Corp. v. Milne, 98 So. 3d 613, 615 (Fla. 4th DCA 2012) (quoting State ex rel. Am. Home Ins. Co. v. Seay, 355 So.2d 822, 824 (Fla. 4th DCA 1978).

(7) “Once the summary judgment was entered disposing of the only action properly before the court as to Rollins, and the time for filing a petition for rehearing or a motion for new trial and the appeal period has run, there was no action remaining before the trial court on which to base an amendment even if the court had seen fit to permit one.” Mich Auto Sales Inc., v. 14004 NW 19th Ave., LLC, 2022 WL 2821511, *2 (Fla. 3d DCA July 20, 2022) (quoting DiPaolo v. Rollins Leasing Corp., 700 So. 2d 31, 32 (Fla. 5th DCA 1997)).

(8) When “the notice of appeal [is] filed before the motion for new trial [is] filed, the motion although timely [is] a nullity because the appellant’s filing of notice of appeal waive[s] his right to file the motion for new trial.” Huntley v. State, 267 So. 2d 374, 376 (Fla. 4th DCA 1972).

(9) “[W]hen [an] appellant file[s] a notice of appeal, while [their] . . . Motion for New Trial [is] pending before the trial court, [appellant] abandon[s] the motion and divest[s] the trial court of jurisdiction to rule on it.” Johnson v. State, 154 So. 3d 1184, 1185 (Fla. 4th DCA 2015).

(10) “Florida Rule of Civil Procedure 1.530(b) provides that a motion for new trial shall be ‘served not later than 10 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action.’” Hemmerle v. General Motors Acceptance Corp., 680 So. 2d 1091, 1091 (Fla. 4th DCA 1996).

(11) In a case where there is a directed verdict, the 10-day period for service of a motion for new trial begins running from the day of the judgment, not the directed verdict. Hemmerle v. General Motors Acceptance Corp., 680 So. 2d 1091, 1091-92 (Fla. 4th DCA 1996) (citing Meus v. Eagle Family Discount Stores, Inc., 499 So.2d 840, 842 (Fla. 3d DCA 1986).

(12) A motion for new trial delivered after 5:00 p.m. will not be counted as delivered on the following day, despite rule 1.080, because that rule “was added . . . to address facsimile transmission only” and the rule’s restrictions would lead “to an unreasonable result.” Castillo v. Vlaminck de Castillo, 771 So. 2d 609, 610 (Fla. 3d DCA 2000).

(13) Some districts do not require a trial court to hold a “live” hearing on a motion for new trial before denying the motion; additionally, the third and fifth districts that may require a hearing hold that it is harmless error “if there is no new evidence raised by the motion.” Aubourg v. Erazo, 922 So. 2d 1106, 1107-08 (Fla. 4th DCA 2006).

(14) “[T]he motion for new trial filed by [a codefendant] destroyed the finality of the judgment . . . as to [all defendants] and said judgment was not appealable by any of the parties until disposition of the motion for new trial.” Rice v. Doyle, 232 So. 2d 163, 165 (Fla. 1970).

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