THE OHIO CASUALTY GROUP, APPELLANT,
v.
JAMES C. PARRISH, JR., A MINOR BY AND THROUGH HIS FATHER AND NEXT FRIEND, JAMES C. PARRISH, SR., AND JAMES C. PARRISH, SR., INDIVIDUALLY, ET AL., APPELLEES
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Ohio Casualty Group, a workers' compensation carrier, appealed a trial court order denying its motion to modify a previously affirmed lien award. The court held that once a judgment is affirmed on appeal, the trial court lacks jurisdiction to modify it without prior permission from the appellate court, even under Rule 1.540(b).
Once a final judgment is affirmed on appeal, that judgment becomes a judgment of the appellate court, and the trial court cannot modify it without specific permission from the appellate court, regardless of the procedural mechanism used to seek modification.
[1] A trial court cannot modify a final judgment affirmed on appeal without first obtaining leave from the appellate court.
[2] A motion for relief from a judgment under Fla.R.Civ.P. …
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Join FLexlaw to unlock all legal intelligence“When the provisions of a final judgment are affirmed on appeal, that judgment becomes a judgment of the appellate court. Without specific permission by the appellate court, that judgment cannot be interfered with by the trial court.”
States the controlling legal principle that affirmed judgments are beyond the trial court's unilateral modification authority
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Join FLexlaw to unlock all legal intelligenceOn September 7, 1970, a minor was severely injured in an automobile accident. His father sued third-party tortfeasors on the minor's behalf. The minor…
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HENDRY, Judge.
Appellant, the workmen’s compensation carrier in the court below, brings this appeal from an order entered by the trial court on February 3, 1975, denying appellant’s motion to modify an order on equitable distribution, or in the alternative, for relief pursuant to Fla.R.Civ.P. 1.540(b)(5). Appellees were the plaintiffs in the trial court.
On September 7, 1970, appellee, a minor, was severely injured in an automobile accident. The minor’s father instituted suit against the third party tortfeasors on behalf of his son and in his individual capacity. Appellee’s employer had workmen’s compensation insurance with appellant. On January 26, 1971, pursuant to Section 440.-39, Florida Statutes (1971), a Notice of Workmen’s Compensation Carrier’s Claim of Lien was filed by appellant.
During the course of settlement negotiations, a conference was held before the circuit court judge to determine the amount of recovery the court would allow appellant on its lien. On August 23,1971, the trial court entered its order of award and an appeal by the carrier followed. By order of April 4, 1972, this court affirmed the trial court. Ohio Casualty Group v. Parrish, 260 So. 2d 550 (Fla.3d DCA 1972), cert. den. 273 So. 2d 78 (Fla.1973), cert. den. 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973); App. dism. 291 So. 2d 8 (Fla.1974).
On November 5, 1975, appellant, based upon a subsequent modification of Section 440.39, Florida Statutes (Supp.1974), sought to modify the August 23, 1971 award. Ap-pellees thereupon filed a Suggestion of Lack of Jurisdiction over the Subject Matter. On November 3, 1975, the lower court held that it lacked jurisdiction and denied the appellant’s motion without prejudice. On November 21, 1975, appellants filed a Notice of Appeal and Notice of Interlocutory Appeal. These appeals were consolidated by order of this court on November 24, 1975.
Appellant, in its brief, correctly states the issue as follows:
“Whether the trial court, after affirmance on appeal of a judgment, may thereafter entertain a motion to modify or in the alternative for relief under F.R.Civ.P. 1.540(b) without first obtaining leave of the appellate court which theretofore affirmed the judgment.”
Appellant contends that the better procedure under a F.R.Civ.P. 1.540(b) motion would be to allow the trial court to entertain the motion without first obtaining permission from the appellate court. Appellant argues that this procedure would eliminate the unnecessary and delaying formalism of requiring leave of the appellate court before the trial court could dispose of the motion.
We cannot agree with appellant’s contention. When the provisions of a final judgment are affirmed on appeal, that judgment becomes a judgment of the appellate court. Without specific permission by the appellate court, that judgment cannot be interfered with by the trial court. Schetter v. Schetter, 330 So. 2d 150 (Fla.4th DCA 1976). See also Lesperance v. Lesperance, 257 So. 2d 66 (Fla.3d DCA 1971).
We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reason stated and upon the authorities cited the order appealed from is affirmed and this cause is remanded to the trial court for the assessment of appellees’ attorney’s fees pursuant to Section 440.-34(1), Florida Statutes (1975).
Affirmed and remanded to the trial court for an assessment of attorney’s fees.
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The Ohio Cas. Grp. v. Parrish, 350 So. 2d 466 (Fla. 1977)…SUNDBERG, Justice. This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Third District, reported at 338 So. 2d 910, which is alleged to be in conflict with Avant v. Waites, 295 So. 2d 362 (Fla. 1st DCA 1974), on the issue of whether a trial court has authority to entertain a motion to modify a final judgment under Fla.R.Civ.P. 1.540(b), without first obtaining p…
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Mendelson v. Lavine Mendelson, 341 So. 2d 811 (Fla. 2d DCA 1977)…] trial court utterly lacks the power to deviate from the terms of an appellate mandate. City of Miami Beach v. Arthree, Inc., 300 So. 2d 65 (Fla.3rd DCA 1973); Schetter v. Schetter, 330 So. 2d 150 (Fla.4th DCA 1976); Ohio Casualty Group v. Parrish, 338 So. 2d 910 (Fla.3rd DCA 1976).6 Upon our affirmance of the order granting a new trial, the Circuit Court had no authority to do anything but to schedule one. We reverse the final judgment and direct that this now be done. Reversed and remanded. McNULTY, A. C…
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Ohio Cas. Grp. v. Parrish, 389 So. 2d 679 (Fla. 3d DCA 1980)…PER CURIAM. We review the trial court’s $276,250 attorneys fee award. Previously, we remanded to the trial court for rendition of the fee judgment now appealed, and that order has been affirmed. Ohio Casualty Group v. Parrish, 338 So. 2d 910 (Fla. 3d DCA 1976), aff’d 350 So. 2d 466 (Fla.1977). We hold that the trial court properly awarded fees in the instant ease, and that, based on our review of testimony and other evidence adduced below, the award was not so excessive as to constitu…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gimelstob v. United States, 414 U.S. 828 (U.S. 1973)
- Wright v. Virginia, 414 U.S. 828 (U.S. 1973)
- Lesperance v. Lesperance, 257 So. 2d 66 (Fla. 3d DCA 1971)
- The Ohio Cas. Grp. v. Parrish, 260 So. 2d 550 (Fla. 3d DCA 1972)
- Schetter v. Schetter, 330 So. 2d 150 (Fla. 4th DCA 1976)
- The Ohio Cas. Grp. v. Parrish, 273 So. 2d 78 (Fla. 1973)
- Arsenio Garcia v. Hon. Murray Goodman, 273 So. 2d 78 (Fla. 1973)
- Stoner v. W. G. Inc., 291 So. 2d 8 (Fla. 1974)
- Marion v. State, 291 So. 2d 8 (Fla. 1974)