
    Irene Stein WEINBERG, Alan Stein and Marvin Stein, Appellants, v. Jack STEIN and Thelma Stein, Appellees.
    No. 89-1551.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1989.
    Rehearing Denied Feb. 13, 1990.
    
      Adorno Zeder Allen Yoss Bloomberg & Goodkind and Ellen M. Waldman and Brian Goodkind, Miami, for appellants.
    Rhea P. Grossman, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
   ON MOTION TO DISMISS

SCHWARTZ, Chief Judge.

The issue before us on the appel-lees’ motion to dismiss is whether the rendition of a final judgment is postponed for appellate purposes by an oral motion for new trial made after the return of the verdict. We cannot agree with the dissent or the federal cases it cites that this is the. case. Florida Rule of Appellate Procedure 9.020(g) specifically provides that a motion for new trial and other post-trial motions defer rendition until disposition “[w]here [such a motion] has been filed in the lower tribunal_” [e.s.] The word “filed” quite obviously connotes and requires the existence of an identified document as opposed to a mere statement of counsel. Florida Rule of Civil Procedure 1.080 provides:

(d) Filing. All original papers shall be filed with the court either before service or immediately thereafter. If the original of any bond or other paper is not placed in the court file, a certified copy shall be so placed by the clerk.
(e) Filing Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk, except that the judge may permit papers to be filed with him in which event he shall note the filing date before him on the papers and transmit them to the clerk. The date of filing is that shown on the face of the paper by the judge’s notation or the clerk’s time stamp, whichever is earlier.

It is simply hard to imagine one’s verbally “filing” anything. See State v. Powell, 70 Wis.2d 220, 234 N.W.2d 345 (1975). Thus, even though it is possible that an oral post-trial motion may be effectively made and ruled upon “during a hearing or trial” under Florida Rule of Civil Procedure 1.100(b), it cannot extend the appellate time under Florida Rule of Appellate Procedure 9.020(g) — which is the issue before us — unless a piece of paper is lodged with the clerk. See Bituminous Casualty Corp. v. Clements, 148 Fla. 175, 178-79, 3 So.2d 865, 866 (1941).

Looking at the issue from a broader perspective, moreover, we are surely not inclined to rest the determination of a jurisdictional issue, such as the time for taking an appeal, upon a statement which, like an oral post-trial motion, is not of record. Cf. Cox v. Tyrone Power Enters., 49 Cal.App.2d 383, 121 P.2d 829 (1942). For these reasons, the motion is granted.

Appeal dismissed.

JORGENSON, Judge,

dissenting.

I respectfully dissent. I would deny the motion to dismiss and allow appellants to proceed with the merits of their appeal.

On January 30,1989, following a five-day trial, the jury in this case returned a verdict finding that the action was time-barred. After the verdict was returned, plaintiffs dictated into the record their motion for a new trial, arguing that the statute of limitations is not a recognized defense in an action against a trustee for breach of fiduciary duty. Counsel for defendants did not object to the form or content of that oral motion. The trial court expressly reserved ruling on the motion and, on January 31, 1989, entered final judgment for defendants. On February 10, 1989, plaintiffs filed and served a written motion for a new trial raising the same grounds they had raised in their oral motion.

Defendants moved to strike the written motion for new trial as untimely. At the hearing on defendants’ motion to strike and plaintiffs’ motion for a new trial, the trial judge noted that he routinely allowed counsel to dictate into the record a motion for a new trial and then “supplement” the oral motion later in writing. The trial court found that the oral motion was a valid motion for a new trial and denied defendants’ motion to strike. The trial court denied plaintiffs’ motion for a new trial; eighteen days later, on June 26,1989, plaintiffs filed their notice of appeal. Appellees moved to dismiss the appeal on the grounds that plaintiffs filed and served their written motion for a new trial more than ten days after the verdict was returned. Because the written motion was untimely, they argue, the trial court was without jurisdiction to hear the motion and the proceeding did not toll the thirty days within which to file a notice of appeal from the judgment entered on January 31, 1989.

Under the Florida Rules of Civil Procedure, “[a] motion for new trial ... shall be served not later than 10 days after the return of the verdict in a jury action....” Fla.R.Civ.P. 1.530(b). The rules also provide that “[a]n application to the court for an order shall be by motion which shall be made in writing unless made during a hearing or trial. . . .” Fla.R.Civ.P. 1.100(b) (emphasis added). Although no Florida court has decided the issue, the fourth circuit, interpreting the federal counterpart to Florida’s rule on motions for a new trial, has held that an oral motion for a new trial made in open court immediately after the verdict was rendered was timely and tolled the time allowed for appeal. Witt v. Merrill, 208 F.2d 285 (4th Cir.1953); see also Meriwether v. Couglin, 879 F.2d 1037 (2d Cir.1989); Douglas v. Union Carbide Corp., 311 F.2d 182 (4th Cir.1962) (because oral motion for new trial made in open court, filing or service of written motion not required).

Of course, the more prudent practice for an attorney to follow is to file and serve a written motion for a new trial within ten days following the return of a jury verdict; however, on these facts, I believe the oral motion for a new trial was timely and, therefore, tolled, not extended, the time for filing a notice of appeal until the trial court disposed of the motion. The motion was not “a mere statement of counsel,” as the majority states. Counsel explicitly moved on the record for a new trial and clearly articulated his grounds. The trial court expressly reserved ruling on the oral motion. Florida courts have long favored determinations of controversies “upon the merits, rather than upon procedural technicalities.” Gordon v. Vaughan, 193 So.2d 474, 475 (Fla. 3d DCA 1967) (citations omitted).

I would deny the motion to dismiss the appeal as untimely filed and entertain this appeal on the merits. 
      
      . Rendition (of an Order), the filing of a signed, written order with the clerk of the lower tribunal. Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing, certification, to alter or amend, for judgment in accordance with prior motion for directed ver-diet, notwithstanding verdict, in arrest of judgment, or a challenge to the verdict, the order shall not be deemed rendered until disposition thereof.
     
      
      . We need not directly decide this question at this time.
     
      
      . But see Pettie v. Kronberg, 300 So.2d 44 (Fla. 4th DCA 1974) (counsel's telephone call to judge ' could not be treated as timely motion for new trial or petition for rehearing).
     
      
      . “Decisions and commentaries under the federal rules are persuasive guidelines to the interpretation of state rules closely patterned thereon.” Dinter v. Brewer, 420 So.2d 932, 934 n. 2 (Fla. 3d DCA 1982), citing Gross v. Franklin, 387 So.2d 1046, 1048 n. 6 (Fla. 3d DCA 1980).
      Federal Rule of Civil Procedure 7(b)(1) provides:
      An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall' state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
      Federal Rule of Civil Procedure 59(b) provides:
      A motion for a new trial shall be served not later than 10 days after the entry of the judgment.
      Federal Rule of Appellate Procedure 4(a)(4) provides:
      If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party ... under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion.
     