Waltham A. Condominium Ass'n v. Village Management, Inc.

• Citation: 330 So.2d 227
• Decision Date: 02 April 1976
• Docket Number: No. 75--1380,75--1380
• Parties: WALTHAM A. CONDOMINIUM ASSOCIATION et al., Appellants, v. VILLAGE MANAGEMENT, INC., et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 227

330 So.2d 227

WALTHAM A. CONDOMINIUM ASSOCIATION et al., Appellants, v. VILLAGE MANAGEMENT, INC., et al., Appellees.

No. 75--1380.

District Court of Appeal of Florida, Fourth District.

April 2, 1976.

Rehearing Denied May 5, 1976.

Michael B. Small, Small, Ciklin & Jacobson, West Palm Beach, for appellants.

John B. McCracken, Jones, Paine & Foster, West Palm Beach, for appellee-Village Management, Inc.

OWEN, Judge.

Appellants were held in contempt of court for their willful failure to comply with a previous interlocutory order entered in this cause. Appealing from the contempt order, their first point is that the trial court was without jurisdiction to hold them in contempt for violation of the earlier interlocutory order because they had timely perfected an interlocutory appeal from that order, ¹ thereby withdrawing from the trial court the subject matter thereof. The earlier order had not been superseded, and therefore appellants' position is unsound. Nonetheless, this point presents us with the opportunity to clarify an area of the law as to which there has been a great deal of confusion: the power of the lower court to proceed in a cause while an interlocutory appeal is pending.

While there is some confusion even in those cases in which the appealed interlocutory order has been superseded or stayed, by for the greatest area of confusion is found in those cases in which the appealed interlocutory order has not been superseded or stayed, the confusion arising out of the contradictory language used and inconsistent results reached in the various reported decisions discussed hereafter. Some of the apparent contradictions and inconsistencies can be satisfactorily reconciled or distinguished, but others cannot. We therefore conclude, that if the law on this particular issue is to be clarified, we must of necessity state the proper rule of law as we perceive it to be, and, in all deference, declare erroneous those decisions which cannot be satisfactorily distinguished and which have set forth a view contrary to that which we believe to be the proper rule of law.

The leading Florida case on the rule pertaining to the authority of the lower court to proceed pending an interlocutory appeal without supersedeas is Willey v. W. J. Hoggson Corporation, 89 Fla. 446, 105 So. 126 (1925). That case, interestingly enough, was concerned with defining Appellate rather than trial court jurisdiction. Plaintiffs appealed without supersedeas from an interlocutory order sustaining defendants' demurrer to the complaint. While this interlocutory appeal was pending, the trial court entered a final decree dismissing the complaint. When no appeal was taken from the final decree, defendants moved to have the interlocutory appeal dismissed as moot in light of the final, unappealed disposition of the case. It was this motion which precipitated the Supreme Court's oft cited opinion. The Court denied defendants' motion to dismiss the appeal, setting forth the following, eminently logical reasons for its decision:

'The nature of a cause and of the order or decree appealed from might be such that, subject to the appeal, the trial court may properly take further judicial proceedings in the cause (Waring v. Bass, 76 Fla. 583, 80 So. 514), or the order or decree appealed from may be executed or enforced, unless a supersedeas is duly obtained and made effective as an incident to the appeal taken (3 C.J. 1258; Henry v. Whitehurst, 66 Fla. 567, 64 So. 233); but where an appeal is duly taken, whether with or without a supersedeas, so as to transfer the cause to the appellate court, The trial court is without power to finally dispose of the cause by dismissal or othrwise so as to in form or effect interfere with the power and authority of the appellate court, under the Constitution, To make its jurisdiction and orders or decrees effective in the cause to which its organic appellate jurisdiction has attached by due course of appellate procedure.

In this case the question whether a supersedeas was obtained is not material. An appeal was duly taken from an order sustaining a demurrer to a bill of complaint on the ground that there is no equity in the bill. No supersedeas was obtained, and even though in the absence of a supersedeas the trial court had the power to permit or require other proceedings in the cause that would not tend to impair or to interfere with the appellate jurisdiction and power of the Supreme Court, or to defeat the efficacy of the appellate proceedings already duly taken, yet the dismissal of the bill of complaint by the lower court was subject to the result of the interlocutory appeal theretofore duly taken, otherwise the trial court would by such dismissal finally determine the merits of the cause which is the only matter involved in the appeal taken and then pending in the Supreme Court.

When the appellate court acquires jurisdiction of a cause, no order of the trial court can legally impair or interfere with the power of the appellate court to make its jurisdiction in the premises effective. An order of the trial court dismissing a bill of complaint, made after the appeal was duly taken, does not affect the jurisdiction of the appellate court. See Holland v. State, 15 Fla. 549. Should an interlocutory order appealed from be reversed, the decree and mandate of the appellate court is effectual to restore the dismissed case to the docket of the trial court. If an interlocutory order appealed from is affirmed, the dismissal of the cause in the trial court is not of material consequence.'

'To dismiss this appeal, under the circumstances shown by the record, would be to constitute the circuit court the sole and final arbiter of the sufficiency of the bill of complaint and divest this court of its constitutional jurisdiction to review such determination.' (emphasis supplied) (105 So. at 128--9).

Shortly thereafter, Moody v. Volusia County, 90 Fla. 864, 107 So. 185 (1925), presenting an entirely analogous situation, was decided on the authority of the Willey case.

Six years later, in Thursby v. Stewart, 103 Fla. 990, 138 So. 742 (1931), the rule was first applied with respect to and as a limitation upon the jurisdiction of a trial court. In Thursby, plaintiff had filed for and been granted a temporary injunction. Defendants filed an interlocutory appeal from the order granting the injunction, but at the same time moved the Lower court to dissolve the injunction. While the interlocutory appeal was pending, the lower court granted defendants' motion to dissolve the injunction and plaintiff appealed from that order. The two appeals were consolidated in the Supreme Court. Citing the 'general rule' that:

'. . . when an appeal is perfected, the cause becomes one for the cognizance of the appellate court, and for that court alone. The authority of the lower court is terminated, and it cannot proceed in the cause, at least as to the subject-matter of the appeal, until the appeal is heard and determined. 3 C.J. 1252, 1255; 2 Enc.P. & Pr. 332. See, also, Holland v. State, 15 Fla. 549.'

the Supreme Court held that the lower court was without authority to enter the order dissolving the injunction. The Court therefore reversed that order and proceeded to consider the merits of the original order granting the injunction.

Later cases (to be discussed, infra) have relied upon the above-quoted language in Thursby v. Stewart as the statement of the rule governing lower court proceedings pending interlocutory appeal. While this language is certainly susceptible of an interpretation consistent with the rule as it was more clearly stated in the Willey case, ² it is, at the very least, ambiguous and we surmise that this language is at least partially responsible for the present confusion surrounding the subject.

Despite the likelihood that the language of Thursby v. Stewart has injected some ambiguity and confusion into the law, the actual resolution of that case exemplifies the proper operation and application of the rule. The situation involved in Thursby typifies that which was intended to be covered by the rule limiting trial court jurisdiction during the pendency of an interlocutory appeal without supersedeas. There, the lower court's rescission of the injunction, interfered in form and effect with the appellate court's jurisdiction, because any decision by the appellate court would then have been rendered meaningless. ³

The next significant decision involving this subject was Crichlow v. Equitable Life Assur. Soc., 113 Fla. 668, 152 So. 849 (1933). There, an interlocutory appeal without supersedeas was taken from an order overruling defendants' demurrer to the complaint. While the appeal was pending, the trial court entered a decree pro confesso against the demurring defendants and proceeded to enter a final decree in plaintiff's favor from which defendants took a second appeal. Deciding this latter appeal, the court stated, at 850:

'The point in the second appeal is that the first appeal transferred to the Supreme Court jurisdiction of the cause and therefore the circuit court had no power to proceed with the determination of the cause on the merits having lost jurisdiction of it by the first appeal. That contention is unsound, as has many times been decided by this court. See Hartman v. Pool, 103 Fla. 858, 139 So. 589; Willey v. Hoggson, 89 Fla. 446, 105 So. 126; Moody v. Volusia County, 90 Fla. 864, 107 So. 185; Lucerne Properties, Inc., v. Hobbs, 98 Fla. 162, 123 So. 571.

The jurisdiction of the Supreme Court is exclusive only as to the subject covered by the appeal. Willey v. Hoggson, supra.

Where there is no supersedeas taken in an appeal from an interlocutory order, the lower court may proceed further after the appeal, but such proceedings are subject to the orders or decrees of the appellate court in the cause on the appeal.

The limitation upon this rule extends only to the point of depriving the lower court of the...