ROBERT MACKIN, APPELLANT,
v.
ALLAN H. APPLESTEIN, ALLAN H. APPLESTEIN FOUNDATION TRUST AND FEDERAL INSURANCE COMPANY, APPELLEES; ALLAN H. APPLESTEIN AND ALLAN H. APPLESTEIN FOUNDATION TRUST, APPELLANTS, V. FEDERAL INSURANCE COMPANY, APPELLEE
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In this insurance coverage dispute, the court affirmed summary judgments for Federal Insurance Company against Mackin and the Applestein defendants based on allegations of intentional torts with specific intent to harm, which fell outside the insurance policy's coverage. However, the court remanded the case to allow the plaintiff to amend the complaint to allege imputed or implied malice instead, which could establish coverage, and clarified that the prior judgment would not constitute res judicata against a new complaint.
The court affirmed the summary judgments for Federal on the fourth amended complaint as required by the appellate mandate from the prior decision, and affirmed the order denying amendment after judgment was entered. However, the court remanded the case to allow the plaintiff to amend the complaint to allege imputed or implied malice, clarifying that such an amended complaint would not be barred by res judicata.
[1] An appellate court's mandate directing a trial court to enter summary judgment is binding and must be followed without deviation.
[2] A trial court loses jurisdiction to grant relief by amending a complaint after entering judgments pursuant to an appellate mandate.
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Join FLexlaw to unlock all legal intelligence“the trial court was required to comply with our appellate mandate directing that this be done and had no authority whatever to do otherwise”
Establishes that the trial court was bound by the prior appellate decision and had no discretion to deviate from it
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Join FLexlaw to unlock all legal intelligenceMackin sued Applestein and the Applestein trust, alleging in the fourth amended complaint that intentional torts were committed with specific intent t…
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SCHWARTZ, Judge.
In Federal Ins. Co. v. Applestein, 377 So. 2d 229 (Fla. 3d DCA 1979), cert. denied, 389 So. 2d 1107 (Fla.1980), we held that, upon the face of the plaintiff Mackin’s fourth amended complaint against Apple-stein and the Applestein trust, which claimed that intentional torts were committed with a specific intent to harm, the defendants’ liability carrier, Federal, had no obligation to defend or provide coverage. Shortly before the release of that decision, Mackin moved in the lower court to amend the complaint further so as alternatively to claim that Applestein had acted only with imputed or implied malice, an allegation which would presumably have established coverage under Employers Commercial Union Ins. Co. of America v. Kottmeier, 323 So. 2d 605 (Fla. 2d DCA 1975), cited with approval in Applestein. After the receipt of our opinion, however, the trial judge complied with our specific directions to do so, see 377 So. 2d at 233-34, and entered summary judgments for Federal against Mackin and the Applestein defendants. The present cases are appeals from that judgment and from a later order denying, as to Federal, the motion to amend.1 We affirm both the judgment and the post-judgment order but remand the cause for further proceedings.2
The judgments entered for Federal on the fourth amended complaint were plainly correct. Indeed, the trial court was required to comply with our appellate mandate directing that this be done and had no authority whatever to do otherwise. O. P. Corp. v. Village of North Palm Beach, 302 So. 2d 130 (Fla.1974); Jones v. Knuck, 388 So. 2d 328 (Fla. 3d DCA 1980); Robinson v. Gale, 380 So. 2d 513 (Fla. 3d DCA 1980); Modine Manufacturing Co. v. ABC Radiator, Inc., 367 So. 2d 232 (Fla. 3d DCA 1979), cert. denied, 378 So. 2d 342 (Fla.1979); Mendelson v. Mendelson, 341 So. 2d 811, 813-14 (Fla. 2d DCA 1977).
Similarly, there was no error in the order declining to permit an amendment to the complaint after the thus-required judgments for Federal. At that point, the court had lost jurisdiction to grant such relief. Hargraves v. Costin, 325 So. 2d 486 (Fla. 1st DCA 1975); Atlantic Coast Line R. R. Co. v. Gulf Oil Corp., 206 So. 2d 688 (Fla. 2d DCA 1968); Marans v. Stang, 124 So. 2d 891 (Fla. 3d DCA 1960).
It is appropriate to add, however, that neither this opinion nor any other factor is an impediment to now amending the fourth amended complaint in the manner sought by Mackin and agreed to by Apple-stein and the trust (who all have a common interest in securing coverage),3 and thereupon to proceeding to a determination of Federal’s liability under the then-existing fifth amended complaint either by again joining and serving the company in the action itself, a demand by the insureds to defend, or both. While we express no opinion upon the ultimate outcome of that controversy, we do observe that, since we have held in Applestein I that the carrier’s responsibility is entirely and exclusively governed by the contents of the operative complaint against the insureds, the judgment entered with respect to the earlier pleading — which we ordered in the prior opinion and affirm in this one — cannot be res judicata
Bernard v. Gulf Ins. Co., 542 S.W. 2d 429 (Tex.Civ.App.1976); see, C. A. Fielland, Inc. v. Fidelity & Casualty Co. of New York, 297 So. 2d 122, 127 (Fla. 2d DCA 1974), cert. denied, 309 So. 2d 6 (Fla.1975); see generally, 19 Fla.Jur. Judgments § 123 (1958).
Affirmed and remanded.
. We review this order as one entered after final judgment under Fla.R.App.P. 9.130(a)(4).
. Mackin has separately challenged an order granting the Applestein defendants’ motion to lift sanctions which had previously been imposed upon them. The appeal from this non-final order, which is plainly not subject to Fla.R. App.P. 9.130, is dismissed for lack of jurisdiction.
. Under Fla.R.Civ.P. 1.190(a), pleadings may be amended at any stage with the “written consent of the adverse party.”
. The statute of limitations would likewise be no defense. Clemons v. Flagler Hospital, Inc., 385 So. 2d 1134 (Fla. 5th DCA 1980).
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Marsh & McLennan, Inc. v. Aerolineas Nacionales del Ecuador, 530 So. 2d 971 (Fla. 3d DCA 1988)…the court’s order after rehearing was a "non-final order[ ] entered after final order”; ás such, and since the motion came too late to suspend rendition, it was ap-pealable under the last sentence of Rule 9.130(a)(4). See also Mackin v. Applestein, 404 So. 2d 789 (Fla. 3d DCA 1981) (court, after it had lost jurisdiction over case, denied motion to amend complaint; denial of motion to amend was appealable under Rule 9.130(a)(4), as it was a non-final order entered after a final order). .There is a narrow exc…
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State Farm Mut. Auto. Ins. Co. v. Stack, 543 So. 2d 782 (Fla. 3d DCA 1989)…hout any intimation that the late notice question existed or could prevent that legal conclusion. Since it is apodictic that the trial court is bound to follow without question the directions and mandate of the appellate court, Mackin v. Applestein, 404 So. 2d 789 (Fla. 3d DCA 1981); Jones v. Knuck, 388 So. 2d 328 (Fla. 3d DCA 1980); Modine Mfg. Co. v. ABC Radiator, Inc., 367 So. 2d 232 (Fla. 3d DCA 1979), cert. denied, 378 So. 2d 342 (Fla.1979); Mendelson v. Mendelson, 341 So. 2d 811 (Fla. 2d DCA 1977), the…
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Greater Palm Beach Symphony Ass'n, Inc. v. Hughes, 441 So. 2d 1171 (Fla. 4th DCA 1983)…acts were done with malice. On appeal, the third district court found coverage was negated by the allegations of the complaint and reversed the summary judgment against the carrier. However, in a later appeal in the same case, Mackin v. Applestein, 404 So. 2d 789 (Fla. 3d DCA 1981), the court implied that had the plaintiff pled alternatively, a cause of action within the coverage may have been stated in those counts where “malicious intent” was not alleged. This statement is consistent with the Kottmeier dec…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Fed. Ins. Co. v. Allan H. Applestein & the Allan H. Applestein Found. Tr. & Robert Mackin, 377 So. 2d 229 (Fla. 3d DCA 1979)
- O. P. Corp. & Wiggs & Maale Constr. Co., Inc. v. The Vill. OF N. Palm Beach, 302 So. 2d 130 (Fla. 1974)
- C. A. Fielland, Inc. v. Fid. & Cas. Co. OF NEW York, 297 So. 2d 122 (Fla. 2d DCA 1974)
- Clemons v. Flagler Hosp., Inc., 385 So. 2d 1134 (Fla. 5th DCA 1980)
- Emp'rs Commercial Union Ins. Co. of Am. v. Charles A. Kottmeier, M.D., 323 So. 2d 605 (Fla. 2d DCA 1975)
- Modine Mfg. Co. v. ABC Radiator, Inc., 367 So. 2d 232 (Fla. 3d DCA 1979)
- Jones v. The Honorable Francis X. Knuck, 388 So. 2d 328 (Fla. 3d DCA 1980)
- Zoto's Int'l, Inc. v. Pinkus, 341 So. 2d 811 (Fla. 3d DCA 1977)
- Mendelson v. Lavine Mendelson, 341 So. 2d 811 (Fla. 2d DCA 1977)
- Nilza Kallos, M.D. v. Blouin, 380 So. 2d 513 (Fla. 3d DCA 1980)