J. E. JOYNER, APPELLANT,
v.
BERNARD ETTLINGER AND A. A. ROSIER-ROOTER, INC., APPELLEES
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The trial court lacked authority to rescind an order granting a new trial after the appellate court had affirmed that order, and the appellate court reversed the trial court's subsequent order rescinding the new trial.
A trial court may not rescind an order granting a new trial after an appellate court has affirmed that order, even if a motion is filed attempting to obtain relief previously denied on appeal.
[1] A trial court lacks authority to rescind an order granting a new trial after an appellate court has affirmed that order, even if the motion is characterized as seeking re…
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Join FLexlaw to unlock all legal intelligenceJoyner appealed from an order granting a new trial. The appellate court affirmed the new trial order. Thereafter, appellees filed a motion to rescind …
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MILLS, Chief Judge.
This is the second appearance of this case on appeal. The first appeal was taken from an order of the trial court granting a new trial. After jurisdiction had vested in this Court, this Court entered an order relinquishing jurisdiction for thirty days so that the trial court could enter an order specifying the grounds for having granted the new trial as required by Rule 1.530(f), Fla.R. Civ.P. The trial court never entered such an order. Subsequently, this Court affirmed the order granting the new trial. A. A. Rosier-Rooter, Inc. v. Joyner, 351 So. 2d 409 (Fla. 1st DCA 1977). After this Court had affirmed the order granting the new trial, appellees filed a “Motion to Rescind Order of New Trial and Enter Judgment” and this motion was granted by the trial court. It is from this latter order that the present appeal is taken. We reverse.
Under the facts of this case, the trial court was without the authority to withdraw the order granting the new trial. Although we recognize that the trial court may entertain a timely motion under Rule 1.540(b), Fla.R.Civ.P., after an order has been affirmed on appeal, Ohio Casualty Group v. Parrish, 350 So. 2d 466 (Fla.1977), such an exception is not applicable to the case, at bar. The motion filed was not a 1.540(b) motion but was merely an attempt to convince the trial court to grant the relief which had been denied by the appellate court.
REVERSED and REMANDED for a new trial.
McCORD and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Glatstein v. The City OF Miami, 391 So. 2d 297 (Fla. 3d DCA 1980)…ndate. Of course, based on other jurisdictional considerations, a trial court may not entertain a post-mandate motion, made under the guise of Rule 1.540(b), which seeks the very same relief which the appellate court has denied. Joyner v. Ettlinger, 382 So. 2d 31 (Fla. 1st DCA 1980).…
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J. E. Joyner, Inc. v. Ettlinger, 382 So. 2d 27 (Fla. 1st DCA 1979)
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State v. Rollins, 386 So. 2d 619 (Fla. 3d DCA 1980)…without permission of this court. Modine Manufacturing Co. v. ABC Radiator, Inc., 367 So. 2d 232 (Fla. 3d DCA 1979). Without leave of this court, the trial court had no power to vacate or set aside a prior judgment of this court. Joyner v. Ettinger, 382 So. 2d 31 (Fla. 1st DCA 1980); State v. Thompson, supra. [*621] Therefore, the order of the trial court is reversed and the cause is remanded for proceedings not inconsistent with this opinion. . Rollins v. State, 369 So. 2d 950 (Fla. 3d DCA 1978) was decide…
Authorities Cited
- The Ohio Cas. Grp. v. Parrish, 350 So. 2d 466 (Fla. 1977)
- J. E. Joyner, Inc. v. Ettlinger, 382 So. 2d 27 (Fla. 1st DCA 1979)