ROBERT M. DYER, APPELLANT,
v.
CITY OF MIAMI EMPLOYEES' RETIREMENT BOARD, APPELLEE
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Dyer, a successful petitioner in a certiorari proceeding, appealed the circuit court's denial of his motion for attorney's fees and costs. The appellate court affirmed the denial, holding that the circuit court lacked jurisdiction to grant the motion because it was filed after the appellate mandate had issued and the term of court had expired.
The circuit court had no jurisdiction to grant the motion for attorney's fees and costs because it was filed after the appellate mandate had issued and the term of court had expired, and the petitioner made no request that the circuit court recall its mandate or show that the mandate was inadvertently issued due to mistake, fraud, collusion, or deceit.
[1] A circuit court lacks jurisdiction to grant a motion for attorney's fees and costs filed after the term of court in which the appellate mandate was issued has expired, ab…
[2] A court's jurisdiction to award attorney's fees and costs is divested upon the expiration of the term in which its mandate was issued, unless specific grounds for recalli…
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Join FLexlaw to unlock all legal intelligence“the circuit court had issued its appellate mandate in the case (September 30, 1986), and the term of court in which the mandate issued had expired (November 10, 1986), see § 26.32, Fla.Stat. (1985), by the time the petitioner filed his motion for attorney's fees and costs (November 17, 1986)”
Establishes the temporal problem: the motion was filed after both the mandate issued and the term of court expired
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Join FLexlaw to unlock all legal intelligenceDyer was a successful petitioner in a certiorari proceeding before the circuit court sitting in its appellate capacity. The circuit court issued its a…
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PER CURIAM.
This is an appeal from an order denying a motion for attorney’s fees and costs filed by a successful petitioner in a certiorari proceeding before the circuit court sitting in its appellate capacity. We affirm the order under review upon a holding that the circuit court had no jurisdiction to grant the said motion. We reach this result because (a) the circuit court had issued its appellate mandate in the case (September 30, 1986), and the term of court in which the mandate issued had expired (November 10, 1986), see § 26.32, Fla.Stat. (1985), by the time the petitioner filed his motion for attorney’s fees and costs (November 17, 1986), which reiterated a previously filed, timely application for said fees and costs, (b) the petitioner made no request below that the circuit court recall its mandate, and, accordingly, made no showing, as required by law, that the mandate was inadvertently issued in the prior term of court due to mistake, fraud, collusion, or deceit, and (c) the circuit court, under these circumstances, had no jurisdiction to grant the petitioner’s aforesaid application for attorney’s fees and costs. State Farm Mut. Auto Ins. Co. v. Judges of Dist. Court of Appeal, Fifth Dist., 405 So. 2d 980, 981 (Fla.1981); McGregor v. Hammock, 114 Fla. 259, 154 So. 191 (1934); see Martin v. Martin, 139 So. 2d 406, 408 (Fla.1962); Wheeler Fertilizer Co. v. Rogers, 49 So. 2d 83, 86 (Fla.1950); Chapman v. St. Stephens Protestant Episcopal Church, 105 Fla. 683, 138 So. 630 (1932); see also State ex rel. Melbourne State Bank v. Wright, 107 Fla. 178, 183, 145 So. 598, 600 (1932); Alabama Hotel Co. v. J.L. Mott Iron Works, 86 Fla. 608, 98 So. 825 (1924).
Affirmed.
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Citator
Cited By
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The Judges OF the Eleventh Jud. Cir. v. Janovitz, 635 So. 2d 19 (Fla. 1994)…determine the amount. Janovitz petitioned the district court of appeal for a writ of mandamus directing the circuit court to withdraw its award of attorney’s fees. Following its earlier decision in Dyer v. City of Miami Employees’ Retirement Board, 512 So. 2d 338 (Fla. 3d DCA 1987), the district court of appeal held that the circuit court had no jurisdiction to enter the order on attorney’s fees after its mandate had issued. The circuit court’s appellate division then petitioned this Court for review. An ap…
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Janovitz v. The Judges OF THE Eleventh Jud. Cir., 613 So. 2d 527 (Fla. 3d DCA 1993)…the same term of court as the appellate mandate cannot change this result. See, e.g., State Farm Mut. Auto. Ins. Co. v. Judges of the Dist. Ct. of Appeal, Fifth Dist., 405 So. 2d 980, 982 (Fla.1981); Dyer v. City of Miami Employee’s Retirement Bd., 512 So. 2d 338 (Fla. 3d DCA 1987). The petition for a writ of mandamus is hereby granted, but we withhold issuance of a writ of mandamus on the assumption that the circuit court will vacate the attorney’s fee order upon receipt of this opinion. It is so ordere…
Authorities Cited
- Chapman v. St. Stephens Protestant Episcopal, 105 Fla. 683 (Fla. 1931)
- Ala. Hotel Co. v. The J. L. Mott Iron Works, 86 Fla. 608 (Fla. 1923)
- State Farm Mut. Auto. Ins. Co. v. Judges OF the Dist. Court OF Appeal, 405 So. 2d 980 (Fla. 1981)
- State v. Wright, 107 Fla. 178 (Fla. 1932)
- Wheeler Fertilizer Co. v. Rogers, 49 So. 2d 83 (Fla. 1950)
- McGregor v. Olin C. Hammock, 114 Fla. 259 (Fla. 1934)
- Shell's City, Inc. v. Hanson, 139 So. 2d 406 (Fla. 1962)
- Martin v. Martin, 139 So. 2d 406 (Fla. 1962)