IN THE SUPREME COURT OF FLORIDA CASE No. SC07-26 BRAD HIGGINBOTHAM Petitioner vs. TIMOTHY BOZEMAN Respondent AMENDED RESPONDENT S BRIEF ON JURISDICTION Kenneth W. Sukhia FBN 266256 Conwell Sukhia & Kirkpatrick, P.A. 2846 Remington Green Circle, Suite B Tallahassee, FL 32308 (850) 383-9111 (850) 383-9911 Facsimile Attorneys for the Respondent Timothy Bozeman
TABLE OF CONTENTS Table of Citations iii Summary of Argument 1 Argument 1 I THE DCA S DECISION IS NOT IN EXPRESS OR DIRECT CONFLICT WITH DECISIONS OF THIS OR ANY DISTRICT COURT. 1 II THE DCA S DECISION DOES NOT EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OR STATE OFFICERS. 9 Conclusion 10 ii
TABLE OF CITATIONS Cases: pages: Avant v Waites, 6,7 295 So.2d 362 (Fla. 1st DCA 1974) Berger v Leposky, 9 103 So.2d 628 (Fla. 1958) Bloxham v. Florida Cent. Peninsular R.R. Co., 9 22 So.697 (1897) Bozeman v Higginbotham, 2,3,10 923 So.2d 535 (Fla. 1st DCA 2006) Brunner Enterprises, Inc. v Dept. of Revenue, 5 450 So.2d 550 (Fla. 1984) Cobourn v. Cobourn, 3,4 436 So.2d 284 (Fla. 5th DCA 1983) Eutectic Corp. v. Metro, Inc., 8 597 F.2d 32 (11 th Cir. 1979) Fairfax Broadcasting Co.v. Florida Automotive Inc, 6,9 252 So.2d 854 (Fla. 4th DCA 1971) Hargrave-Thomas v. Yukins, 8 450 F.Supp.2d 711 (E.D. Mich. 2006) Joyner v Ettlinger, 5 382 So.2d 31 (Fla. 1st DCA 1980) Lesperance v Lesperance, 6,9 257 So.2d 66 (Fla. 3d DCA 1972) Litman v. Massachusetts Mutual Life Insurance Co., 8 825 F.2d 1506 (11th Cir. 1987) iii
Mobley v. Mobley, 5 920 So.2d 97 (Fla. 5th DCA 2006) Ohio Casualty Group v. Parrish, 6,7,9 350 So.2d 466 (Fla. 1978) State ex rel. Reynolds v. White, 4 24 So.160 (Fla. 1898) Rinker Materials Corp. v. Holloway Materials Corp., 7 175 So.2d 564 (Fla. 2d DCA 1965). Standard Oil Co. of Cal v US, 6,8 429 U.S. 17 (1976) State v Anderson, 6,9 157 So.2d 140 (Fla. 3d DCA 1963) State v Knott, 4,5 97 So.2d 165 (Fla. 157) Wheeler v. John Deere Co., 8 935 F.2d 1090 (10 th Cir. 1991 Wright v. Lewis, 5 870 So.2d 179 (Fla. 4th DCA 2004) Rules and Other Authorities: Fla.R.Civ.P. 1.540 1,2,3,4,5,6,7,10 Fed.R.Civ.P. 60(b) 8 iv
SUMMARY OF ARGUMENT I. The First District s decision merely applies the well-settled law requiring compliance with appellate mandates. Petitioner s arguments are premised on a mischaracterization of the holdings in the cases relied on. Those cases all deal with the authority of lower courts to entertain motions to amend their own original judgments which have been affirmed on appeal, and not with the authority to defy appellate mandates directed to the trial court. None of those cases authorize a trial court to entertain Rule 1.540(b) motions, such as the one at issue here, to vacate appellate mandates reversing a trial court s original judgment. II. Because the First District s decision does not change the existing authority of trial or appellate courts, the decision does not affect constitional officers. ARGUMENT ISSUE I THE DCA S DECISION IS NOT IN EXPRESS OR DIRECT CONFLICT WITH DECISIONS OF THIS OR ANY DISTRICT COURT The appeal by Appellant/ Petitioner Brad Higginbotham, which was dismissed by the First DCA in the per curiam order from which the Petitioner now seeks Supreme Court review, represents the second time this identical case had been presented to the First District Court of Appeal. In the initial appeal, the First District, after full briefing and oral argument, ruled in favor of then Appellant Timothy Bozeman, who had appealed from the trial court s order nullifying a tax deed he had purchased for
the property of current Petitioner Brad Higginbotham. The First District ruled for then Appellant Bozeman and reversed the trial court s order nullifying the tax deed. See Bozeman v. Higginbotham, 923 So.2d 535,537(Fla. 1st DCA 2006). Higginbotham filed a Motion for Rehearing, a Motion for Rehearing En Banc and a Motion to Certify the Case as one of great public importance, all of which were denied by the First DCA on March 22, 2006. Higginbotham did not file any motion or Notice to Invoke the Discretionary Jurisdiction of the Florida Supreme Court. After the time had expired for pursuing the matter to the Florida Supreme Court, the First DCA issued its mandate in the case on April 7, 2006. See Bozeman v. Higginbotham, 923 So.2d at 535. In reversing the trial court, the First District ordered as follows: The trial court erred by nullifying the tax deed. The order nullifying the tax deed is REVERSED, and the case REMANDED. On remand the court should grant the writ of assistance filed by Appellant. Bozeman v Higginbotham, 923 So.2d at 537. A month after the First District mandate issued, Petitioner Higginbotham filed a motion with the trial court under Fla.R.Civ.P. 1.540(b)(1)(5) asking the trial court to vacate the final judgment, and claiming the First District erred in its legal theories and neglected to give plain meaning to the statute that is being interpreted. Noting that Higginbotham was asking this court to overturn or vacate the judgment of the First District, the trial court denied the motion, observing that he had no authority, power, or prerogative to in any way alter, let alone, vacate the 2
judgment of the First District in its mandate and the law of the case thereby established... Higginbotham then appealed to the First District the trial court s order refusing to reverse the First District. Higginbotham now seeks to invoke this court s discretionary jurisdiction to review the First District s decision dismissing the appeal, which reads in its entirety as follows: PER CURIAM. This appeal is dismissed for lack of jurisdiction. Florida Rule of Civil Procedure 1.540 does not authorize motions that seek relief from a mandate of this court issued to the trial court. WOLF, LEWIS, THOMAS, JJ., CONCUR Far from directly or expressly conflicting with opinions from this Court or other district courts, the First District s decision dismissing the appeal for lack of jurisdiction merely applies the well-settled principle of law that trial courts do not have the power to set aside, vacate, reverse, annul, or refuse to carry out mandates of appeals courts directed to them, especially following reversal. The Petitioner s Jurisdictional arguments are premised on a fundamental misunderstanding of the law governing motions to vacate or amend judgments pursuant to Fla.R.Civ.P. 1.540(b). That rule authorizes a court to modify or vacate its own orders; it does not authorize any court to vacate, amend or modify orders rendered by other courts. See Cobourn v. Cobourn, 436 So.2d 284 (Fla 5th DCA 1983). Rule 1.540(b) provides that on motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, 3
order or proceeding for the limited reasons specified in the Rule. Fla.R.Civ.P. 1.540(b) (emphasis added). Emphasizing the language of the Rule providing that the court may relieve, a party from a prior order, the court in Cobourn observed that under the Rule only the court which ordered the conveyance has the authority to withdraw the order and set aside the conveyance. 436 So.2d at 286. As the court in Cobourn further explained, a trial judge has no authority to countermand another trial judge s final judgment. Where fraud, mistake, excusable neglect or other factors would permit the setting aside of a judgment [pursuant to Rule 1.540b], then only the court which rendered a judgment may set it aside. Id. If a trial court has no authority to set aside a fellow trial court s final order based on fraud, mistake, newly discovered evidence or surprise under Rule 1.540(b), a trial court certainly has no authority to set aside a specific directive to the trial court issued by the appeals court. See State v. Knott, 97 So.2d 165 (Fla. 1957). 1 In Knott, as in this case, the appeals court reversed the trial court and issued a mandate directing it to enter a specific decree. In quashing an order from the trial court which failed to follow the reviewing court s directive, the Supreme Court held, 1 See also, State ex rel. Reynolds v. White, 24 So.160, 166 (Fla. 1898) ( It is a familiar rule of law that one court in proceedings not appellate, has no power to reverse or disregard the judgment of another court of equal or even inferior authority How much stronger do the reasons for such a rule become when applied to the judgments of superior courts! The circuit court was without power under any circumstances to set aside, reverse or annul the judgment of this court rendered upon the former appeal. ). 4
The trial court had no jurisdiction to enter the questioned order. The rendition of the opinion and judgment and the issuance of the mandate of this Court directing the entry of a decree of specific performance removed any discretion which the trial court had in the matter and left him vested only with the power to enter such decree in accordance with the requirements of the mandate. Our judgment superseded and nullified the previous judgment of the circuit court and the only power remaining in that court over the proceedings was to carry out and place into effect the order and judgment of this Court. Id. at 266 (emphasis added). This Court s holding in Knott remains the law today. Brunner Enterprises, Inc. v. Dept. of Revenue, 450 So.2d 550, 552 (Fla. 1984) ( lower courts cannot change the law of the case as decided by this Court, or alternatively by the highest court hearing a case. ); Mobley v. Mobley, 920 So.2d 97, 100 (Fla. 5th DCA 2006) (it is the lower court s affirmative obligation to carry out a specific directive in an appellate mandate and a trial court has no authority to deviate from the mandate. ); Wright v. Lewis, 870 So.2d 179, 181 (Fla. 4th DCA 2004)(appellate court has inherent power to order compliance with its mandates and to issue a judgment which the trial court should have issued pursuant to the mandate ); Joyner v. Ettlinger, 382 So.2d 31 (Fla. 1st DCA 1980) (trial court was without authority to grant relief which had been denied by the appellate court. ) The Petitioner s jurisdictional argument is premised on an incorrect interpretation of certain cases which address only the trial court s authority to entertain a Rule 1.540(b) motion without prior leave of the appeals court. These cases only authorize trial courts to entertain such motions to modify or vacate their own orders after they have been affirmed on appeal. None of those cases authorize 5
trial courts to modify or vacate appeals court decisions reversing their earlier rulings. See, Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla. 1978); Avant v. Waites, 295 So.2d 362 (Fla. 1st DCA 1974); Standard Oil Co. of Cal. v. United States, 429 U. S. 17 (1976). None of them dealt with or in any way changed the law applied by the First District in this case prohibiting the trial court from defying a directive from an appeals court which had reversed the original trial court judgment. The change in the law the Petitioner references which was enunciated in Avant and adopted by this Court in Parrish dealt only with the procedural prerequisites to a trial court considering a Rule 1.540(b) motion to alter or amend an original trial court judgment which had been affirmed on appeal and had thereby become the final judgment of the appeals court. Because a final judgment of a trial court affirmed on appeal is said to become the judgment of the appellate court, the law had long provided that a trial court had no authority in such a circumstance to entertain a motion to vacate its original judgment without permission from the appeals court which had affirmed the original judgment. See Lesperance v. Lesperance, 257 So.2d 66, 67 (Fla. 3d DCA 1972); State v. Anderson, 157 So.2d 140, 142 (Fla. 3d DCA 1963); Fairfax Broadcasting Co. v. Florida Automotive, Inc., 252 So.2d 854, 856 (Fla. 4th DCA 1971). In Avant, however, the First District departed from the above cases and held that where a trial judge s final judgment has been affirmed on appeal, the trial judge has authority to entertain a motion to modify that judgment under Rule 1.540(b) 6
without first obtaining leave from the appellate court. As the First District made clear, the only question before it was whether a trial court after affirmance on appeal may thereafter entertain a timely motion pursuant to Rule 1.540 (b), without first obtaining leave of the appellate court which theretofore affirmed the judgment. 295 So.2d at 362 (emphasis added). In Avant, the court specifically acknowledged that its decision did not apply to cases such as this in which trial court judgments had been reversed and remanded. 295 So.2d at 364. In those instances, trial courts have no jurisdiction whatsoever to vacate or in any way engraft modifications to the mandate. Avant, 292 So.2d at 364, quoting, Rinker Materials Corp. v. Holloway Materials Corp., 175 So.2d 564, 566 (Fla. 2d DCA 1965). In 1977, the Florida Supreme Court adopted the reasoning enunciated by the First District in Avant. See Ohio Casualty Group v. Parrish, 350 So.2d. at 468-69. The issue in Parrish, as framed by the Supreme Court, was whether a trial court has authority to entertain a motion to modify a final judgment under Fla.R.Civ.P. 1.540(b) without first obtaining permission of the appellate court which has previously affirmed that final judgment. 350 So.2d at 467 (emphasis added). In Parrish, this Court repeatedly made it clear it was addressing only the prerequisites to a trial court s authority to entertain a motion to vacate its original judgment. Id. at 468 (emphasis added). Obviously, in cases such as this one in which the trial 7
court s original judgment has been annulled and superseded 2 by reversal on appeal, it cannot be said that a trial court can in any sense entertain a motion to vacate its original judgment. Id. The Petitioner also relies on the U. S. Supreme Court decision in Standard Oil. That decision, however, also dealt only with the issue of whether appellate leave was necessary before a trial court could entertain a motion, in that case under Fed.R.Civ.P.60(b), to amend its own order which had been affirmed on appeal. 429 U.S. at 17-18. The Standard Oil case has repeatedly been distinguished on this precise ground, and did not change the rule prohibiting trial courts from vacating or amending appellate decisions reversing them. See, e.g., Litman v. Massachusetts Mutual Life Insurance Co., 825 F.2d 1506, 1516 (11th Cir. 1987) (trial court has no authority to decide[] contrary to the law of the case established on the prior appeal, and [e]ven at the joint request of the litigants, the district court may not deviate from the mandate of an appellate court. ); Eutectic Corp. v. Metro, Inc., 597 F.2d 32, 34 (11 th Cir. 1979) (district courts are without jurisdiction to entertain a motion under Rule 60(b) to alter or set aside appellate judgments, and are bound to follow them. ); Hargrave-Thomas v. Yukins, 450 F.Supp.2d 711, 720-21(E.D. Mich. 2006)(where trial court s original judgment was reversed on appeal the original judgment is without any validity, force or effect and trial court cannot 2 See, Wheeler v. John Deere Co., 935 F.2d 1090,1096 (10th Cir. 1991), noting that to reverse a judgment means to overthrow, vacate, set aside, make void, annul, repeal, or revoke it. Black s Law Dictionary 1319 (6th ed. 1990). 8
grant relief from its judgment because it no longer exists by reason of the [appeals court] reversal. ). The Petitioner also cites various cases decided prior to Parrish for the erroneous proposition that trial courts have always had jurisdiction to modify final judgments, including reversals, from appeals courts. See, e.g., Bloxham v. Florida Cent. Peninsular R.R. Co., 22 So.697, 705 (1897); Berger v Leposky, 103 So.2d 628, 631 (Fla 1958); Lesperance; Fairfax Broadcasting, State v. Anderson. The Petitioner misconstrues the holdings in these cases. These cases merely recognized the authority of trial courts, at the time only with appellate permission, to entertain motions to vacate or modify their own prior trial court judgments after they had been affirmed on appeal. They had nothing to do with and in no way changed the settled law requiring trial courts to comply with specific directives in mandates issued to them from appellate courts. ISSUE II THE DCA S DECISION DOES NOT EXPRESSLY AFFECT A CLASS OF CONSTITUIONAL OR STATE OFFICERS Petitioner s arguments under Issue II are premised entirely on the validity of his analysis under Issue I. He claims that the First District has taken from trial courts the authority to hear motions to vacate or amend all types of mandates from the appeals court, including decisions which merely affirm prior trial court judgments. The decision, however, addresses only mandates of this Court issued to the trial court, in the context of a case which had clearly been reversed in a 9
published opinion. Bozeman v. Higginbotham, 920 So.2d at 537. As explained above, the First DCA opinion merely states and applies the well-settled legal principle that trial courts must comply with specific directives in mandates issued to them from appellate courts. It does not change existing law so as to directly or indirectly affect a class of constitutional or state officers. CONCLUSION The Petitioner has misconstrued the law governing the trial court s authority under Fla.R.Civ.P.1.540(b). The cases relied on by the Petitioner all deal with the authority of lower courts under 1.540(b) to modify their own original orders which have been affirmed on appeal and which, in that sense only, have become final appellate judgments. Rule 1.540(b) does not authorize a trial court to vacate or modify an order from an appeals court, such as the one the First District entered here, which reverses the trial court s original order and directs the trial court to take certain actions in conformity therewith. The decision of the First District accurately states and properly applies the long standing principle of law that trial judges have no authority to deviate from specific directives in mandates issued to them from appellate courts. This Court should therefore decline to hear this case. 10
Respectfully Submitted, Kenneth W. Sukhia FBN 266256 Conwell Sukhia & Kirkpatrick, P.A. 2846 Remington Green Circle, Suite B Tallahassee, FL 32308 (850) 383-9111 (850) 383-9911 Facsimile Attorneys for the Respondent Timothy Bozeman
Certificate of Service I certify that a copy hereof has been furnished to Attorney for Brad Higginbotham Robert M. Ervin, Jr. Ervin, Kitchen & Ervin Post Office Drawer 1170 Tallahassee, FL 32302 by mail this day of March, 2007 Attorney Certificate of Compliance I certify that this brief complies with the font requirement of Florida Rule of Appellate Procedure 9.210(a)(2). Attorney