Aetna Ins. Co. v. Buchanan, 78-649
| Decision Date | 13 June 1979 |
| Docket Number | No. 78-649,78-649 |
| Citation | 372 So.2d 172 |
| Parties | AETNA INSURANCE COMPANY, Appellant, v. Robert M. BUCHANAN, Jr., Appellee. Second District |
| Court | Florida District Court of Appeals |
This court issued an opinion on February 23, 1979, reversing the summary judgment entered in the trial court against appellant and remanding the case for further proceedings not inconsistent with the opinion 369 So.2d 351. On April 24, 1979, this court issued its mandate to the trial court commanding that further proceedings be had in the cause in accordance with the opinion of this court and with the rules of procedure and laws of the State of Florida. Notwithstanding that mandate, the trial judge entered an order on May 18, 1979, staying further proceedings in the cause pending a final determination by the Supreme Court of Florida on appellee's notice invoking the certiorari jurisdiction of the supreme court to review this court's decision. Appellant has filed with this court a motion for review of that stay order.
The stay order entered by the trial judge is, in effect, an attempt to stay the effectiveness of this court's mandate pending review by the supreme court. Clearly the trial judge is without authority under Fla.R.App.P. 9.310 to issue such an order, since this court, not the trial court, is now the "lower tribunal" for purposes of the rule. Accordingly, we entered an order pointing out that the trial judge was without authority to enter the stay sought to be reviewed and that this court has continuing jurisdiction under Rule 9.310 to enter a stay of the effectiveness of its mandate pending review by the supreme court. We directed appellee to present to this court, in writing, the question whether this court should stay the effectiveness of its mandate issued pursuant to its opinion of February 23, 1979.
Appellee has declined to comply with our order. Instead, appellee has filed herein a reply to appellant's motion to review the stay order of the trial judge. In that reply appellee contends that the stay order was not entered pursuant to Rule 9.310, but pursuant to Section 59.13, Florida Statutes (1977). Appellee argues that, since Rule 9.310 does not apply to a stay granted pursuant to the provision of a general law, the stay order in question is not reviewable by this court upon motion as provided in Rule 9.310. Appellee further argues that, in any event, the stay order was properly entered in the exercise of the discretion of the trial judge under Section 59.13 and should not be disturbed.
Appellant has filed herein a responsive memorandum to appellee's reply, in which appellant correctly points out that under Rule 9.310, only this court has authority to stay the effectiveness of its...
To continue reading
Request your trial
-
Citibank, N.A. v. Plapinger
...tribunal," or the Supreme Court can grant such a stay. Robbins v. Pfeiffer, 407 So.2d 1016 (Fla. 5th DCA 1981); Aetna Insurance Co. v. Buchanan, 372 So.2d 172 (Fla. 2d DCA), cert. denied, 378 So.2d 342 (Fla.1979). See Murphy v. Murphy, 378 So.2d 27 (Fla. 3d DCA 1979). Moreover, we will not ......
-
Robbins v. Pfeiffer
...courts have denied such stay. The trial court did not have jurisdiction to overrule such determinations. Cf. Aetna Insurance Company v. Buchanan, 372 So.2d 172 (Fla.2d DCA 1979). The trial court had no jurisdiction to stay execution on the judgment, and its order of November 10, 1981, is he......
- Buchanan v. Aetna Ins. Co.