RANDALL GUNNING, PETITIONER,
v.
DONALD R. BROPHY, RESPONDENT
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The court held that the state circuit court order compelling discovery was void ab initio because it was entered after the case was removed to federal court.
Petitioner Gunning challenged a state circuit court order compelling him to answer interrogatories. The order was entered after a notice of removal to…
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PER CURIAM.
Petitioner Randall Gunning has filed a petition for writ of prohibition challenging a circuit court order entered February 27, 1997, which compelled him to answer interrogatories submitted by respondent Donald Brophy. The petition shall be treated in part as a petition for writ of certiorari.
The record before this court demonstrates that on February 18, 1997, a “Notice of Removal” was filed in the United States District Court and a “Notice of Filing Notice of Removal to Federal Court” was filed in the state circuit court. The removal to Federal court divested the state circuit court of jurisdiction. See 28 U.S.C. § 1446(d) (1996); General Electric Credit Corp. v. Smith, 484 So. 2d 75 (Fla. 2d DCA 1986). The state court’s order dated February 27, 1997, was void ab ini-tio. Accordingly, the petition for writ of certiorari is granted to the extent that this order is vacated.
The Federal District Court granted Bro-ph/s “Motion to Remand” the matter to the state circuit court on April 27, 1997. Jurisdiction now lies with the circuit court. All other relief requested in the writ of prohibition is denied. This matter is remanded to the circuit court for further proceedings, which may include addressing the Motion to Compel Discovery and Other Sanctions once again.
Petition granted in part, denied in part, and remanded for further proceedings.
PATTERSON, A.C.J., and LAZZARA and WHATLEY, JJ., concur.
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Joseph A. and Mary Ann Musa v. Wells Fargo Del. Tr. Co., 181 So. 3d 1275 (Fla. 1st DCA 2015)…al but prior to remand are void ab initio.” Remova Pool Fence Co. v. Roth, 647 So. 2d 1022, 1024 (Fla. 4th DCA 1994) (concluding a state court’s order awarding attorney’s fees, “which was entered prior to remand,” was void);10 see Gunning v. Brophy, 746 So. 2d 468, 468 (Fla. 2d DCA 1997) (“The removal to Federal court divested the state circuit court of jurisdiction. The state court’s order dated February 27, 1997 [after removal but prior-to remand], was void ab initio.” (citation omitted)); Preston, 627 So.…1 / 2
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Elwood J. Hunnewell, Jr. v. Palm Beach Cnty., 786 So. 2d 4 (Fla. 4th DCA 2000)…le claim that an appeal from a final judgment may be removed to federal court at any time and certainly not on the grounds alleged. We recognize the competing views and the conflicting cases, even within our own state. See, e.g., Gunning v. Brophy, 746 So. 2d 468 (Fla. 2d DCA 1997); Maidman v. Jomar Hotel Corp., 384 So. 2d 728 (Fla. 3d DCA 1980). Nevertheless, we follow the supreme court’s decision in Wilson and deny the petition for rehearing. We certify conflict with Gunning and Maidman. STEVENSON, J., co…
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Ricci v. Ventures Tr. 2013-I-H-R (Fla. 4th DCA 2019)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gen. Elec. Credit Corp. v. Milburn Smith, 484 So. 2d 75 (Fla. 2d DCA 1986)