Peter v. Seapine Corp.Peter v. Seapine Corp.
PER CURIAM.
The appellants filed a motion seeking to vacate or recall our February 9, 1996, mandate and to direct the Leon County trial court to grant their motion to dismiss Circuit Court Case No. 94-3452 for lack of venue. The appellee, Seapine Corporation (Seapine), filed a response challenging jurisdiction and, alternatively, addressing the merits of the appellants’ arguments. Having concluded that we have jurisdiction to consider the timely filed motion, we deny the motion on its merits based on the appellants’ waiver оf the issue presented on appeal.
The appellants’ first threshold is jurisdictional. They filed the motion to recall mandate on Friday, June 28, 1996, within the same regular term of court during which we considered the appeal. See
In Hewitt, the challenged opinion was rendered by the Florida Supreme Court on May 11, 1934. The cоurt‘s first 1934 term ended on June 11 and its second term began the next day. On June 11, 1934, counsel for the unsuccessful defendant mailed a petition to recall mandate that was not received and
In Allen, the supreme court had issued its opinion on December 14, 1934, and the mandate issuеd on December 31, 1934. On January 5, 1935, an untimely motion for rehearing was filed and later was stricken. The court‘s second 1934 term of court ended on January 7, 1935, and the first 1935 term began the next day. On February 2, 1935, a motion for recall of mandate was filed. The court found that it did not hаve jurisdiction to consider the motion to recall mandate, and that the untimely motion for rehearing
was not sufficient to carry the case over from the last term to this term because at the time that petition was filed the mandate had been issued аnd lodged in the court below and the time for filing petition for rehearing had expired, thereby concluding the jurisdiction of this court оver the cause for all purposes except recall of the mandate, which was not requested during the June, 1934, term.
In the instant case, the appellants timely filed their motion with the clerk of the court during the same term as the challenged judgment and mandate. Accordingly, we conclude that Hewitt and Allen directly support our having jurisdiction to consider the motion to recall mandatе. We note that State Farm Mut. Auto. Ins. Co. v. Judges of Dist. Court of Appeal, Fifth Dist., 405 So.2d 980 (Fla. 1981), upon which Seapine relies in its response to the motion, is clearly distinguishable from the case at bar. That case involved the filing of a motion for rehearing almost two months after the end оf the term in which the district court affirmed the trial court‘s order and issued its mandate. After denying the untimely motion, the district court sua sponte reconsidered the case and reversed its prior ruling. Upon review, the supreme court declined to “view the jurisdictional powers of an appellate court as encompassing such a grandiose temporal spectrum.” Id., 405 So.2d at 982. Cf. United Faculty of Florida, Local 1847 v. Board of Regents, State University System, 423 So.2d 429 (Fla. 1st DCA 1982), in which this court granted a joint motion to recall and modify mandate and for clarification, where the joint motion was filed during the same term as the opinion and mandate.
We now address the merits of the appellants’ motion. The case at bar has a lengthy and сircuitous history, much of which is set out in this court‘s opinion on motions for rehearing, In re Receivership of Guarantee Security Life Insurance Company, 678 So.2d 88 (Fla. 1st DCA Aug.28, 1996), which should be read in conjunction with this opinion. After Seapine had voluntarily dismissed its foreclosure action against them in Dade County and filed a nearly identical complaint in Leon County, the appellants filed a motion to dismiss the Leon County complaint, asserting, inter alia, that “the Department is the only proper plaintiff to advance the claims improрerly sought to be asserted by Seapine” and that venue is proper only in the Dade County Circuit Court (or the federal court for the Southern District of Florida), based on a waiver of venue provision in the underlying note. After hearing argument of counsel, the Lеon County court entered an order denying the motion to dismiss and ordering the appellants to file an answer. We granted aрpellate review pursuant to
In their motion to recall mandate, thе appellants argue that this court‘s original opinion in Case No. 95-2416, In re Receivership of Guarantee Security Life Insuranсe Company, 678 So.2d 828 (Fla. 1st DCA 1996), “expressly negates the premise for ... Seapine[`s]... choice of venue in Leon County,” which was based оn
The MOTION to recall mandate is DENIED on the merits.
JOANOS, MICKLE and VAN NORTWICK, JJ., concur.