Milton v. Keith

• Decision Date: 24 February 1987
• Docket Number: No. 86-1392,86-1392
• Citation: 12 Fla. L. Weekly 616,503 So.2d 1312
• Parties: 12 Fla. L. Weekly 616 Jose MILTON, Cirilla Milton, Jose Efron, Paragon Investment Corp., and Jose Enterprises, Appellants, v. R.C. KEITH, et al., Appellees.
• Court: Florida District Court of Appeals

Page 1312

503 So.2d 1312

12 Fla. L. Weekly 616

Jose MILTON, Cirilla Milton, Jose Efron, Paragon Investment Corp., and Jose Enterprises, Appellants, v. R.C. KEITH, et al., Appellees.

No. 86-1392.

District Court of Appeal of Florida,

Third District.

Feb. 24, 1987.

Rehearing Denied April 10, 1987.

Fine, Jacobson, Schwartz, Nash, Block & England and Linda Ann Wells, Miami, for appellants.

Fowler, White, Burnett, Hurley, Banick & Strickroot and Sherryll Martens Dunaj, Miami, for appellees.

Before HENDRY, FERGUSON and JORGENSON, JJ.

HENDRY, Judge.

This is an appeal from a non-final order in which the trial court concluded that upon the filing of a voluntary dismissal by the appellees, it lost all jurisdiction to enforce, inter alia, a prior non-final order previously affirmed by this court. For reasons more fully developed below, we reverse.

The facts are as follows. Appellees, approximately 85 individuals who owned townhomes, filed suit in 1980 seeking a declaration as to the legal ownership of certain tennis courts and lake properties located in their townhome subdivision (Count I). Appellees also sought an accounting of assessments paid to the homeowners' association, (Count II) and by amended complaint sought an injunction to prevent appellants (developers) from enforcing payment of delinquent homeowner assessments pending outcome of the litigation (Count III).

In January 1981, appellees and appellants entered into a stipulation of partial settlement whereby control of the association would immediately be turned over to the residents of the subdivision. The homeowners' association, Royal Singapore Lake Townhouse Association, Inc., thereafter was joined as party plaintiff. Pursuant to the agreement, all matters raised in Counts II and III were settled and on February 25, 1981, appellees noticed their voluntary dismissal with prejudice on those counts.

Count I was to remain pending with the stipulation that each individual appellee and all members of the association would keep the recreation lease payments current until relieved of that obligation by court order. Appellees failed to make the payments. On April 12, 1982, appellants filed a motion to compel compliance. On May 12, 1982, the trial court entered an order granting appellants' motion, thereby compelling appellees to comply with the stipulation of partial settlement by making specified payments to appellants. Furthermore, the court ordered the homeowners' association to pay $36,000.00 to appellants, which represented total amounts due under a business lease. Finally, the trial court conditioned all future relief for appellees upon their payment of the amounts due under the order. In Keith v. Milton, 429 So.2d 13 (Fla. 3d DCA 1983), this court affirmed, per curiam, the decision of the trial court.

On November 27, 1985, appellants filed a motion to enforce the May 12th order. Appellants also moved to dismiss Count I of the amended complaint for lack of prosecution. In response, 54 of the remaining appellees filed a voluntary dismissal under Rule 1.420(a)(1)(i), Fla.R.Civ.P., dismissing Count I of their amended complaint. Based upon this notice of dismissal, an order was entered on May 1, 1986, in which the court, inter alia, declared itself to be without jurisdiction to enforce the May 12th order and treated it as a nullity. This appeal followed. ¹

Appellees contend that their Rule 1.420 notice of voluntary dismissal: (1) deprived the trial court of jurisdiction to enforce the May 12th order, and (2) rendered that order a nullity. They further contend that the order merely "set an amount to be paid if Plaintiffs wanted to pursue the remainder of their suit." Accordingly, appellees argue that since the May 12th order was conditional and was never reduced to a final judgment, the trial court is without jurisdiction to enforce it.

We cannot agree. It is well established in Florida that an order, judgment or decree of a trial court, when affirmed by an appellate court, becomes the order, judgment or decree of the appellate court. State ex rel. Budd v. Williams, 152 Fla. 189, 11 So.2d 341 (Fla.1943) (where circuit court decree was affirmed by the supreme court, circuit court was without jurisdiction to alter the decree without first having authority from the supreme court to do so); Acme Specialty Corp. v. City of Miami, 292 So.2d 379 (Fla. 3d DCA 1974) (order upholding ordinance and thereby prohibiting sale of "sparklers" within city limits became judgment of district court of appeal on entry of mandate of that court and was not subject to interference without specific permission of that court); Jefferson Nat. Bank v. Metro. Dade County, 285 So.2d 445 (Fla. 3d DCA 1973) (when a judgment of the circuit court is affirmed by the district court of appeal, the affirmed judgment becomes the judgment of the district court).

Similarly, once an appellate court affirms an order, judgment or decree, the trial court loses all authority to change, modify, nullify or evade that order, judgment or decree. Dow Corning Corp. v. Garner, 452 So.2d 1 (Fla. 4th DCA 1984) (trial court would be directed to...