WESTINGHOUSE ELECTRIC SUPPLY COMPANY, A DIVISION OF WESTINGHOUSE ELECTRIC CORPORATION, A PENNSYLVANIA CORPORATION, APPELLANT,
v.
DIPLOMAT ELECTRIC, INC., A FLORIDA CORPORATION, AND NATIONAL UNION FIRE INSURANCE COMPANY, A PENNSYLVANIA CORPORATION, APPELLEES
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Westinghouse appeals a trial court's order dismissing the case with prejudice against National Union Fire Insurance Company, entered after the appellate court had reversed and remanded a partial summary judgment. The appellate court holds that its reversal did not authorize dismissal and remands for further proceedings on the merits.
The trial court lacked authority to dismiss the cause with prejudice. When an appellate court reverses without specific directions, the decree is in effect expunged and the case must proceed as if the reversed decree had never been made. The dismissal with prejudice is reversed and the cause is remanded for further proceedings.
“Where a cause is reversed and remanded by the Supreme Court, with no specific directions it is to be proceeded with in the court below as if the reversed decree had never been made.”
Establishes the controlling principle that reversal without specific directions requires the lower court to treat the reversed decree as if it never existed.
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Join FLexlaw to unlock all legal intelligenceA partial summary judgment and final judgment were entered on July 14, 1966. The appellate court reversed this judgment without specific directions. F…
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After our mandate issued in National Union Fire Insurance Company v. Westinghouse Electric Supply Co., Fla.App.1968, 206 So.2d 60, the trial judge entered the following ex parte order although no motions for any relief had been filed.
“ADJUDGED and ORDERED that the Order Granting Motion for Partial Summary Judgment and Final Judgment heretofore entered in this cause on the 14th day of July, 1966, be and the same are hereby vacated, and this cause is dismissed with prejudice as to NATIONAL UNION FIRE INSURANCE COMPANY.”
Westinghouse filed its motion for rehearing which was denied.
Our opinion, supra, simply reversed “without directions.” In such case it has been said:
“Where a cause is reversed and remanded by the Supreme Court, with no specific directions it is to be proceeded with in the court below as if the reversed decree had never been made. Having been reversed, such decree is in effect expunged from the record.” Marshall & Spencer Co. v. People’s Bank of Jacksonville, 88 Fla. 190, 192, 101 So. 358, 359 (1924).
*437See Webb Furniture Co. v. Everett, 105 Fla. 292, 141 So. 115 (1932); South Florida Lumber & Supply Co. v. Read, 65 Fla. 61, 61 So. 125 (1913); Rosenkrantz v. Hall, Fla.App.1965, 172 So.2d 518; 2 Fla.Jur. Appeals § 374.
In essence, our prior opinion held that “under the circumstances and record on appeal of this case,” the rule expressed in Aetna Insurance Company v. Estero Manufacturing & Building Supply, Inc., Fla.App.1965, 174 So.2d 747 applied and required a reversal of the “final judgment” entered on the “order granting motion for partial summary judgment.”
Our reversal of that “partial final summary judgment” did not authorize or direct a dismissal of the cause with prejudice as to National Union Fire Insurance Company.
The order of dismissal with prejudice is reversed and the cause remanded for further proceedings to properly determine the issues raised by the pleadings between these parties.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Martin v. Case, 231 So. 2d 279 (Fla. 4th DCA 1970)…never been made, citing Webb Furniture Company v. Everett, 1932, 105 Fla. 292, 141 So. 115 and many others. There seems to be no disagreement with this statement of law. See Westinghouse Electric Supply Co. v. Diplomat Electric, Inc., Fla.App.1969, 221 So. 2d 436. The decision of this court in Mordue v. Case, supra, did not reverse and remand without directions, but contained specific directions that the counterclaim was to be dismissed as to the counterdefendants. The form of the mandate addressed to the tr…
Authorities Cited
- Webb Furniture Co., Inc. v. Everett, 105 Fla. 292 (Fla. 1932)
- Marshall & Spencer Co. v. Peoples Bank of Jacksonville, 88 Fla. 190 (Fla. 1924)
- S. Fla. Lumber & Supply Co. v. Payton R. Read, 65 Fla. 61 (Fla. 1913)
- State v. Wiecking, 65 Fla. 70 (Fla. 1913)
- Rosenkrantz v. Hall, 172 So. 2d 518 (Fla. 3d DCA 1965)
- Nat'l Union Fire Ins. Co. v. Westinghouse Elec. Supply Co., 206 So. 2d 60 (Fla. 3d DCA 1968)
- AETNA Ins. Co. v. Estero Mfg. & Builders Supply, Inc., 174 So. 2d 747 (Fla. 2d DCA 1965)