DIXIE TOWING CORPORATION, APPELLANT,
v.
OREN L. MOBLEY AND EVELYN MOBLEY, APPELLEES
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Dixie Towing Corporation challenged a trial court's order granting a directed verdict on liability to the plaintiffs and ordering a new trial on damages. The appellate court held that while the trial court lacked jurisdiction to permit amendment of the complaint during the pending appeal, it did not abuse its discretion in setting a trial date contingent upon return of jurisdiction from the appellate court.
The trial court lacked jurisdiction to permit plaintiffs to amend their complaint while the appeal was pending, and prohibition was appropriate to prevent the trial court from entertaining that motion. However, the trial court did not abuse its discretion in resetting the trial date contingent upon return of jurisdiction from the appellate court.
[1] The filing of a notice of appeal from an order granting a new trial vests jurisdiction in the appellate court.
[2] A trial court lacks jurisdiction to permit a party to amend its complaint while an appeal from an order granting a new trial is pending.
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Join FLexlaw to unlock all legal intelligence“An order granting a motion for new trial is appealable as a final judgment to the extent possible and the filing of the notice of appeal vests jurisdiction in the appellate court.”
Establishes that the appellate court obtains jurisdiction upon filing of notice of appeal from a new trial order, divesting the trial court of jurisdiction over related matters.
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Join FLexlaw to unlock all legal intelligenceOren and Evelyn Mobley sued Dixie Towing Corporation for personal injuries. A jury initially returned a verdict for the defendant. The trial court gra…
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PER CURIAM.
Oren and Evelyn Mobley brought an action in the Circuit Court for Duval County against Dixie Towing Corporation to recover damages for personal injuries suffered by Mr. Mobley. After hearing evidence, a jury returned a verdict for the defendant. On motion, however, a directed verdict was granted to the plaintiffs on the issue of liability and a new trial was ordered on damages. Dixie appealed the new trial order. See Fla.R.App.P. 9.110(a)(3) and 9.130(a)(4).
While the appeal was pending the trial court, over objection of defendant, set the matter for new trial to commence in March, 1992, contingent upon completion of the appeal. Plaintiffs moved to amend their complaint and that motion was set for hearing. Dixie then applied to this court for a writ of certiorari and/or prohibition, contending that the trial court lacked jurisdiction to proceed with the litigation and that the actions of the trial court were a departure from the essential requirements of law. We issued an order to show cause (which stayed further proceedings below pursuant to Fla.R.App.P. 9.100(f)) and having now considered the response and reply, we grant in part the relief sought by petitioner. An order granting a motion for new trial is appealable as a final judgment to the extent possible and the filing of the notice of appeal vests jurisdiction in the appellate court. Burris Chemical, Inc. v. Whitted, 485 So. 2d 37 (Fla. 4th DCA 1986). We find that the trial court was without jurisdiction to permit plaintiffs to amend their complaint and prohibition is appropriate to prevent the trial court from entertaining that motion.1
On the other hand, we do not believe that petitioner is entitled to relief from the order which reset the trial. The remedy of prohibition is preventive only, English v. McCrary, 348 So. 2d 293, 296 (Fla.1977). Petitioner cannot now utilize the writ to obtain review of the trial court’s order which sets a date for further exercise of its jurisdiction contingent upon a return of that jurisdiction from this court. Nor do we find that an order resetting trial in these circumstances is a departure from the essential requirements of law or that petitioner has shown the absence of an adequate remedy by appeal from final order. We therefore decline to grant relief insofar as petitioner seeks review of the trial court’s order setting a date for the new trial. In so holding, we are of course mindful that if plaintiffs successfully pursue their request to amend their complaint after jurisdiction returns to the lower tribunal, the defendant must be given an adequate opportunity to respond and further discovery may be necessary. The trial as now set may have to be continued even if the appeal is completely disposed of prior to the date in question in order to allow the parties time to prepare for trial on amended pleadings. These matters, however, are appropriate for resolution in the trial court after mandate issues in the pending appeal.
PETITION GRANTED IN PART AND DENIED IN PART.
JOANOS, C.J., and ZEHMER and MINER, JJ., concur. . Subsequent to the issuance of our show cause order, Circuit Judge Lawrence D. Fay issued an order stating no further action would be taken until completion of the appeal or further order of this court.
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Millar Elevator Serv. Co. v. McGOWAN, 804 So. 2d 1271 (Fla. 2d DCA 2002)…order granting new trial, we hold that the circuit court is without authority to require Millar to defend the action of those plain [*1274] tiffs until such time as this court approves the order granting new trial. See Dixie Towing Corp. v. Mobley, 590 So. 2d 1090 (Fla. 1st DCA 1991) (providing prohibition relief to prevent filing of amended complaint during pendency of appeal of order granting new trial, and denying requested prohibition relief to prevent retrial pending appeal only because the trial judge a…
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Northbrook Prop. & Cas. Co., Inc. v. The Honorable Roger B. Colton, 641 So. 2d 440 (Fla. 4th DCA 1994)…iction to enter any orders on Florida Physicians’ motion directed to the April 26,1991, injunction. Prohibition is available to prevent the trial court from improperly exercising jurisdiction while an appeal is pending. Dixie Towing Corp. v. Mobley, 590 So. 2d 1090 (Fla. 1st DCA 1991). Although Northbrook is not a party in case number 93-2669, they argue, and we agree, that they are a real party in interest as to the outcome of that appeal and the 1991 injunction. Northbrook has a lien, under the workers’ comp…
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Dixie Towing Corp. v. Oren L. Mobley and Evelyn Mobley, 603 So. 2d 692 (Fla. 1st DCA 1992)
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carey English v. McCRARY, 348 So. 2d 293 (Fla. 1977)
- Burris Chem., Inc. v. Whitted, 485 So. 2d 37 (Fla. 4th DCA 1986)