DIXIE SIGHTSEEING TOURS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
FLORIDA TRANSPORTATION CO., A FLORIDA CORPORATION, APPELLEE
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A party may not abandon a cause litigated and remanded for a new trial on damages and file a new complaint on the same cause of action after a mandate has been issued.
After a prior appeal resulted in a new trial on damages, the plaintiff filed a new complaint on the same cause of action, which the trial court dismis…
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These parties were previously before this Court in Florida Transp. Co. v. Dixie Sightseeing Tours, Inc., Fla.App.1962, 139 So.2d 175. In that opinion we held:
“The verdict and judgment in favor of the plaintiff Dixie Sightseeing Tours, Inc. is sustained on liability, but the judgment is reversed as to damages. The cause is remanded for a new trial on damages as to both defendants.”
Thereafter, plaintiff instituted a new complaint on the same cause of action. Thereupon the trial judge dismissed the second complaint with prejudice.
Upon the issuance of a mandate from this Court, a party may not abandon the cause thus litigated and proceed in a new complaint xxpon the same cause of action. While this Court has foxxnd no precedent in Florida to establish this proposition under similar facts, we rely by analogy on those cases which would refuse to allow an amendment of pleadings after the mandate of the appellate court which would set up a new cause of action and present a different basis for relief. This reasoning applies equally to a situation where, after mandate, a plaintiff abandons the basis of the cause of action and seeks to establish another by filing a new complaint. *197See Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792; Federal Land Bank of Columbia v. Brooks, 139 Fla. 506, 190 So. 737.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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United States Fid. & Guar. Co. v. Sellers, 197 So. 2d 832 (Fla. 1st DCA 1967)…g of the Supreme Court in Palm Beach Estates, supra. Continued adherence to the above cited principle in the Palm Beach Estates case was more recently expressed by our sister court in Dixie Sightseeing Tours, Inc. v. Florida Transportation Company, 154 So. 2d 196 (Fla.App.3d). In that case, the court, affirmed an order dismissing with prejudice a new complaint filed after the cause had been remanded for a new trial on the authority of “ * * * those cases which would refuse to allow an amendment to pleadings…
Authorities Cited
- Palm Beach Ests. v. Bula E. Croker, 106 Fla. 617 (Fla. 1932)
- Fed. Land Bank of Columbia v. Brooks, 139 Fla. 506 (Fla. 1939)
- Fla. Transp. Co. v. Dixie Sightseeing Tours, Inc., 139 So. 2d 175 (Fla. 3d DCA 1962)