Ohio Cas. Group v. Parrish, s. 75--1799
| Decision Date | 02 November 1976 |
| Docket Number | 75--1800,Nos. 75--1799,s. 75--1799 |
| Citation | 338 So.2d 910 |
| Parties | 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. |
| Court | Florida District Court of Appeals |
Horton, Perse & Ginsberg, Miami, Jones, Paine & Foster, West Palm Beach, for appellant.
Headley & Sudduth, Sam Daniels, Miami, for appellees.
Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.
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. Appellees 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...
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...Drill Contracting Co., 200 Wash. 273, 93 P.2d 324 (1939); Collins v. Simms, 257 N.C. 1, 125 S.E.2d 298 (1962); Ohio Casualty Group v. Parrish, Fla.App., 338 So.2d 910 (1976); Home Indemnity Co. of New York v. O'Brien, 112 F.2d 387 (6th Cir. 1940); Geuder Paeschke & Frey Co. v. Clark, 288 F.......
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Ohio Cas. Group v. Parrish
...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 author......
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Ohio Casualty Group v. Parrish, 79-2139
...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 We hold that the trial court properly awarded fees in the instant case, and that, based on o......