Avant v. Waites, S--393
| Decision Date | 06 June 1974 |
| Docket Number | No. S--393,S--393 |
| Citation | 295 So.2d 362 |
| Parties | Mrs. Fenton Davis AVANT, Appellant, v. Connie WAITES, Appellee. |
| Court | Florida District Court of Appeals |
William C. Owen and Thomas F. Panebianco, Carswell, McKenzie, Dean & Owen, and Lawrence Renfroe, Tallahassee, for appellant.
Keith J. Kinderman, and Ben H. Wilkinson, Pennington, Wilkinson & Sauls, Tallahassee, for appellee.
The question before us is whether a trial court, after affirmance on appeal of a judgment, may thereafter entertain a timely motion pursuant to Rule 1.540(b) RCP, 31 F.S.A., without first obtaining leave of the appellate court which theretofore affirmed the judgment. Our answer is: 'Yes'. In so holding we are not unaware that we collide with holdings of some of our sister District Courts of Appeal. We have been cited to no decision of our Supreme Court on the point Since the adoption of said rule, and independent research has failed to reveal any. Although we have the utmost respect for the authors of the opinions rendered by our sister courts which hold to the contrary, it is our opinion that the rule itself, at least by implication, dispenses with the necessity of obtaining leave from the appellate court, and that the better logic and reason leads to that result.
Rule 1.540 RCP is derived from Federal Rule 60(a). Its genesis in Florida was Common Law Rule 53 and Equity Rule 68 which were superseded by Rule 1.38, 1954 RCP, Rule 1.38, 1954 RCP, did not contain that which is now Rule 1.540(b). The latter paragraph was added by a 1962 amendment.
Prior to the promulgation and adoption of Rule 1.540 RCP, as it now exists it was necessary, in order for a trial court to consider a motion directed to a final judgment of that court which had been affirmed by an appellate court, to first apply to the appellate court by petition for writ of coram nobis. However, Rule 1.540 specifically provides that writs of coram nobis, and certain other specific writs 'are abolished and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action.'
In State v. Anderson, Fla.App. (3d) 1963, 157 So.2d 140, our sister court of the Third District passed squarely upon the point before us, concluding:
'We therefore hold that for the circuit court to obtain jurisdiction of an action to relieve a party from a judgment, decree, order or proceeding which has become the judgment of the appellate court, it is necessary for leave to be first obtained from the appellate court. * * *' (157 So.2d at page 142)
We do not attempt to distinguish that case.
The Third District again considered essentially the same point in Lesperance v. Lesperance, Fla.App. (3d) 1972, 257 So.2d 66 in which it stated, citing numerous cases, including 7 Fla.Jur., Coram Nobis, § 17, that:
'After the opinion and mandate of this court was rendered in Lesperance v. Lesperance, supra, the final judgment of the trial court became the judgment of this court and the trial court had no authority or jurisdiction to entertain a motion to vacate its original judgment without permission therefor having been obtained from this court. * * *' (257 So.2d at page 67)
However, in the latter case the writer of the opinion evinced some doubt, bolstering the opinion with the following:
* * *' (257 So.2d at page 68)
In Rinker Materials Corp. v. Holloway Materials Corp., Fla.App. (2d) 1965, 175 So.2d 564, our sister court of the Second District passed somewhat obliquely on the point. However that case is clearly distinguishable. There, the action in the lower court was a suit to restrain violation of a covenant not to compete. Relief was denied by the lower court. On appeal, the appellate court reversed and remanded with instructions to enjoin the defendant from breaching the covenant not to complete within a certain area for a specified period. Thereafter the trial judge decreed 'Although not raised by any party to the controversy' that the injunction, as a matter of public policy, would not prevent the sale of products to contractors working on contracts let by any governmental agency. Upon appeal the appellate court held:
'We therefore hold that the lower court had no jurisdiction to engraft on the mandate of this court its exemption of government contracts from the operation of the injunction, and that portion of the order is hereby quashed.' (175 So.2d at page 566)
We completely agree with the above quoted holding Based upon the facts in that case.
We have also examined the Second District case of Bonair Motel, Inc. v. Dowdy, Fla.App. (2nd) 1971, 253 So.2d 265, but are unable to determine from the facts there reported whether the court in that case passed directly upon the issue now before us.
In Fairfax Broadcasting Co. v. Florida Airmotive, Inc., Fla.App. (4th) 1971, 252 So.2d 854, our sister court of the Fourth District considered a case wherein the trial court had entered a partial summary judgment giving rise to an interlocutory appeal and a per curiam affirmance by the appellate court. After remand the trial court entered an order vacating and setting aside the partial summary judgment. On second appeal the District Court stated the issue as follows:
'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.' (252 So.2d at page 856)
After a brief discussion the Fourth District stated:
'* * * This court having affirmed the partial summary judgment, the trial court had no authority to vacate or set aside that judgment.' (252 So.2d at page 856)
When an appellate court issues its mandate its judicial labors in that particular case are completed. (Unless, of course, the lower court...
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