MARY LOU RAGEN MURPHY, APPELLANT,
v.
JOHN S. MURPHY, APPELLEE
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In a post-mandate proceeding following a prior appeal affirming a money judgment in a marital dissolution case, the trial court erroneously denied the wife's motion to supplement the judgment with execution language. The appellate court held that the trial court reacquired jurisdiction upon issuance of the mandate and the husband was not entitled to a stay merely because he invoked the supreme court's certiorari jurisdiction.
The trial court had jurisdiction to grant the motion and committed error in denying it. Upon issuance of the appellate court's mandate, the trial court reacquired jurisdiction over the cause, and the mere filing of a notice invoking certiorari jurisdiction does not deprive the trial court of jurisdiction to act. The wife was entitled to execution as a matter of right, and the denial of her motion effectively granted an improper stay to the husband.
[1] A trial court reacquires jurisdiction over a cause upon the issuance of an appellate court's mandate.
[2] A trial court lacks jurisdiction to enter an order while a case is pending in an appellate court.
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Join FLexlaw to unlock all legal intelligence“While the lower court did no have power to enter the order while the case was pending in this court, see Veiner v. Veiner, 364 So. 2d 834 (Fla. 3d DCA 1978), it reacquired jurisdiction over the cause upon the issuance of our mandate.”
Establishes the key principle that trial court jurisdiction is suspended during appeal but reacquires upon mandate issuance
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Join FLexlaw to unlock all legal intelligenceIn a prior appeal (Murphy v. Murphy, 370 So. 2d 403), the appellate court affirmed a money judgment in favor of the wife against the husband in a mari…
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SCHWARTZ, Judge.
Subsequent to the receipt in the circuit court of the mandate in Murphy v. Murphy, 370 So. 2d 403 (Fla. 3d DCA 1979), the wife moved to supplement the money judgment against the husband which we affirmed so as to add the previously omitted words “for which let execution issue.” The trial court denied the motion, apparently on the ground that it lacked jurisdiction merely because the husband had filed notice of his invocation of the certiorari jurisdiction of the supreme court, pursuant to Fla.R. App.P. 9.120(b). This was error. While the lower court did no have power to enter the order while the case was pending in this court, see Veiner v. Veiner, 364 So. 2d 834 (Fla. 3d DCA 1978), it reacquired jurisdiction over the cause upon the issuance of our mandate. See Meneses v. State, 372 So. 2d 1152, 1154 (Fla. 3d DCA 1979); 3 Fla.Jur.2d Appellate Review § 31 (1978). No supersedeas bond had ever been posted in the case, and the husband neither applied for nor was granted a stay by this court pending the certiorari proceedings,1 as authorized by Fla.R.App.P. 9.310.2 Thus, the effect of the denial of the wife’s motion to permit her to execute upon her judgment was to grant the husband a stay in the complete absence of any basis to do so. See Barnett v. Barnett Bank of Jacksonville, N.A., 338 So. 2d 888 (Fla. 1st DCA 1976). At the time the motion was filed below, the wife was entitled to execution as a matter of right. See City of Miami Beach v. Cummings, 251 So. 2d 715 (Fla. 3d DCA 1971), cert. discharged, 263 So. 2d 571 (Fla.1972); King v. L & L Investors, Inc., 136 So. 2d 671 (Fla. 3d DCA 1962); Fla.R.Civ.P. 1.550(a).
For these reasons, the order under review is reversed and the cause remanded with directions to grant the motion to order execution on the judgment.
Reversed and remanded.
. The automatic stay provided by former Fla.App. Rule 4.5(c)(6) when a petition for certiorari was filed within 15 days of a district court decision has been abolished by the new rules. See Committee Note to Fla.R.App.P. 9.120.
. Even if there had been a prior stay, which there was not, it would have terminated when the mandate issued under the express terms of Fla.R.App.P. 9.310(e).
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Robbins v. The Honorable Frederick Pfeiffer, 407 So. 2d 1016 (Fla. 5th DCA 1981)…North Palm Beach, 302 So. 2d 130 (Fla.1974). In the absence of a stay ordered by the appellate court, the issuance of a mandate affirming a judgment entitles the holder of that judgment to a writ of execution as a matter of right. Murphy v. Murphy, 378 So. 2d 27 (Fla.3d DCA 1980). Thus a stay of execution on a judgment which this court has affirmed and as to which our mandate has been issued would, in effect, be an avoidance of our mandate as to which the trial court has no jurisdiction, notwithstanding the…
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Mellon United Nat'l Bank v. Cochran, 776 So. 2d 964 (Fla. 3d DCA 2000)…1 (Fla. 3d DCA 1983) (appellant entitled to stay of judgment for attorney’s fees and costs only by posting good and sufficient bond as required by rule 9.310(b)(1)), see also DuBreuil v. Regnvall, 527 So. 2d 249 (Fla. 3d DCA 1988); Murphy v. Murphy, 378 So. 2d 27 (Fla. 3d DCA 1979). Reversed.…
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DuBREUIL v. Regnvall, 527 So. 2d 249 (Fla. 3d DCA 1988)…t, admittedly, customary — words “for which let execution issue,” cf. Chan v. Brunswick Corp., 388 So. 2d 274 (Fla. 4th DCA 1980) (words “for which let execution issue” not essential to finality of judgment), we are bound to follow Murphy v. Murphy, 378 So. 2d 27 (Fla. 3d DCA 1979), in which this court construed the absence of these words as effectively granting the judgment debtor a stay of execution and denying the judgment creditor the right to execute on the judgment. Were we free to do so, we would hold…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Murphy v. Murphy, 370 So. 2d 403 (Fla. 3d DCA 1979)
- King v. L & L Invs., Inc., 136 So. 2d 671 (Fla. 3d DCA 1962)
- Malloy v. State, 251 So. 2d 715 (Fla. 2d DCA 1971)
- Veiner v. Veiner, 364 So. 2d 834 (Fla. 3d DCA 1978)
- Barnett v. Barnett Bank OF Jacksonville, N.A., 338 So. 2d 888 (Fla. 1st DCA 1976)
- Meneses v. State, 372 So. 2d 1152 (Fla. 3d DCA 1979)
- Cummings v. City OF Miami Beach, 263 So. 2d 571 (Fla. 1972)