FAIRFAX BROADCASTING COMPANY, A FLORIDA CORPORATION, PETITIONER-CROSS-RESPONDENT,
v.
FLORIDA AIRMOTIVE, INC., AND PACIFIC INDEMNITY COMPANY, CROSS-PETITIONERS-RESPONDENTS, V. HARRY L. CAMPBELL AND LLOYD MACK, RESPONDENTS
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A trial court lacks authority to vacate a partial summary judgment that has been appealed and affirmed by an appellate court.
[1] A trial court lacks authority to vacate or set aside a partial summary judgment that has been affirmed by an appellate court.
[2] After an appellate court affirms a judgment, the trial court's authority is limited to carrying out the appellate court's mandate.
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Join FLexlaw to unlock all legal intelligencePlaintiff sued for injuries from an airplane accident. The owner of the plane filed a third-party complaint against the lessee, alleging they employed…
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This is a petition for certiorari by petitioner-third party defendant, Fairfax Broadcasting Company, and. a cross-petition by respondent-defendant, Florida Air-motive, Inc., seeking review of an order in favor of respondent-plaintiff, Harry L. Campbell. The order sought to be reviewed set aside a partial summary judgment previously entered as to certain issues framed by plaintiff’s complaint and certain issues framed by Florida Airmotive’s third party complaint. We grant certiorari and quash the order.
Plaintiff-Campbell was injured in an airplane accident and brought an action for damages against Florida Airmotive, the owner of the airplane. Florida Airmotive filed a third party complaint against Fair-fax Broadcasting Company, alleging that Fairfax was the lessee of the aircraft at the time of the accident, and was the employer of both plaintiff and the pilot of the airplane at the time of the accident.
On January 28, 1969, the trial court entered a partial summary judgment, the details of which are not necessary to be set forth, in favor of Fairfax as to certain issues framed by the third party complaint, and in favor of Florida Airmotive as to certain issues framed by Plaintiff-Campbell’s complaint.1 This partial summary judgment was affirmed per curiam by this court on interlocutory appeal. Campbell v. Mack, Fla.App. 1969, 226 So.2d 899.
*856After remand, plaintiff filed motion for rehearing on summary judgment” on the ground that the case of Trail Builders Supply Company v. Reagan, Fla.1970, 235 So.2d 482, had overruled the law upon which the earlier partial summary judgment was entered.2 On September 3, 1970, the trial court entered an order vacating and setting aside the partial summary judgment of January 28, 1969, and reinstating those issues framed by the complaint and the third party complaint affected by the summary judgment. These petitions for certiorari then followed.
The primary issue for our determination is whether a trial court can validly vacate and set aside a partial summary judgment previously rendered, appealed and affirmed by an appellate court.
The law m Florida is clear that after appeal of a judgment and its affirmance by an appellate court, the trial court is without authority to take any further action in the cause other than to carry out the mandate of the appellate court. E. g., City of Miami Beach v. Cummings, Fla.App.1971, 251 So.2d 715. On appeal and affirmance the judgment entered by the trial court becomes the judgment of the appellate court, and therefore the trial court is without authority to change, modify or alter the judgment without first having obtained authorization of the appellate court. Eisenburg v. Cornblum, 1945, 156 Fla. 702, 24 So.2d 236.
In the case sub judice, the judgment previously appealed was a partial summary judgment rather than a final judgment as in City of Miami Beach v. Cummings and Eisenburg v. Cornblum, supra. Notwithstanding, however, the same principle set forth applies here as to those issues determined on appeal from the partial summary judgment of January 28, 1969. This court having affirmed the partial summary judgment, the trial court had no authority to vacate or set aside that judgment.
Accordingly, certiorari is granted, the order of September 3, 1970 vacating and setting aside the partial summary judgment of January 28, 1969 is quashed, and the cause is remanded for further proceedings.
It is so ordered.
REED, C. J., and OWEN, J., concur.
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Bryan & Sons Corp. v. Sivert Klefstad, 265 So. 2d 382 (Fla. 4th DCA 1972)…t of the appellate court, and therefore the trial court is without authority to change, modify or alter the judgment without having obtained authorization of the appellate court. Fairfax Broadcasting Company v. Florida Airmotive, Inc., Fla.App.1971, 252 So. 2d 854. In the instant case, the record reveals that the final judgment which was the subject of the prior appeal had awarded plaintiffs interest on the note in the amount of $2,025. That portion of the final judgment, among others, was affirmed by this c…
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Lesperance v. Lesperance, 257 So. 2d 66 (Fla. 3d DCA 1971)…tral and Southern Florida Flood Control Dist. v. Anderson, Fla.App.1963, 157 So. 2d 140; Rinker Materials Corporation v. Holloway Materials Corporation, Fla.App.1965, 175 So. 2d 564; Fairfax Broadcasting Co. v. Florida Airmotive, Inc., Fla.App.1971, 252 So. 2d 854; State ex rel. Archer-Daniels-Midland Co. v. Nathan, Fla.App.1971, 253 So. 2d 265, (opinion filed October 12, 1971) ; Geuder, Paeschke & Frey Co. v. Clark, 7th Cir. 1961, 288 F. 2d 1; Bros. Incorporated v. W. E. Grace Manufacturing Company, 5th Cir.…
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City OF Miami Beach v. Arthree, Inc., 300 So. 2d 65 (Fla. 3d DCA 1973)…inted out that upon the issuance of our mandate, the trial court is without authority to,take any action other than to compose an order carrying out the terms of the mandate. See Fairfax Broadcasting Company v. Florida Airmotive, Inc., Fla.App.1971, 252 So. 2d 854. Second, any motion or petition to vary the judgment of this court may not be entertained without the express permission of this court to do so. Such a petition may not be entertained in the trial court unless the permission of this court for the ma…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Trail Builders Supply Co. v. Reagan, 235 So. 2d 482 (Fla. 1970)
- Zenchak v. Ryder Truck Rentals, Inc., 150 So. 2d 727 (Fla. 3d DCA 1963)
- Hunt v. Ryder Truck Rentals, Inc., 216 So. 2d 751 (Fla. 1968)
- Eisenburg v. Cornblum, 156 Fla. 702 (Fla. 1945)
- Malloy v. State, 251 So. 2d 715 (Fla. 2d DCA 1971)
- Campbell v. Mack, 226 So. 2d 899 (Fla. 4th DCA 1969)