Summary
In Arleo v. Garcia, 695 So.2d 862 (Fla. 4th DCA 1997), the Fourth District followed the reasoning set forth in Capital Bank. There, the trial court denied the motion for rehearing "without prejudice," but the Fourth District held that the trial court did not have authority to proceed further: "[T]rial courts have no authority to permit the filing of any further motion for rehearing beyond the one authorized by rule 1.530."
Summary of this case from Wilson v. FordOpinion
Case No. 97-1029
Opinion filed June 18, 1997
Petition for writ of prohibition to the Circuit Court of the Seventeenth Judicial Circuit, Broward County; Charles M. Greene, Judge; L.T. Case No. 95-10503 (37).
Peter Mineo, Jr. of Peter Mineo, Jr., P.A., Fort Lauderdale, for petitioner.
John F. Jankowski, Jr., Plantation, for respondent.
We grant the petition for writ of prohibition. Upon entering the order on respondent's first motion for rehearing, the trial court lost jurisdiction to rule on the second motion for rehearing and to consider the merits of the case. See Shelby Mutual Insurance Co. of Shelby, Ohio v. Pearson, 236 So.2d 1 (Fla. 1970). The "without prejudice" clause in the order denying the first motion for rehearing does not allow for the filing of a second motion for rehearing; trial courts have no authority to permit the filing of any further motion for rehearing beyond the one authorized by rule 1.530. Capital Bank v. Knuck, 537 So.2d 697, 698 (Fla. 3d DCA 1989). Rule 1.540 does not provide the trial court with jurisdiction since the pension matter at issue does not rest on a clerical error, and the fact-specific case ofDePadro v. Moore, 215 So.2d 27, 29 (Fla. 4th DCA 1968), cert. denied, 222 So.2d 748 (Fla. 1969), urged by respondent as controlling, is distinguishable. Finally, the trial court does not have continuing jurisdiction over the pension issue because the court made an adjudication on the pension issue — i.e., that the pension is a non-marital asset — and did not reserve jurisdiction over that issue. See Galbut v. Garfinkl, 340 So.2d 470, 473 (Fla. 1976).
All orders entered by the trial court after its denial of respondent's first motion for rehearing are hereby vacated. We assume it will be unnecessary to issue a formal writ of prohibition, and that the trial judge will dismiss respondent's second motion for rehearing as an unauthorized motion, and will not proceed further with the case.
PROHIBITION GRANTED.
WARNER, FARMER and PARIENTE, JJ., concur.