Gordon v. Hollo
Gordon v. Hollo
Opinion of the Court
REVISED OPINION
The opinion filed December 7, 1993, is hereby withdrawn and the following opinion is substituted in its place.
Robert Gordon petitions for a Writ of Common Law Certiorari. For the following reasons, we grant the petition as to Florida East Coast Properties [FECP] and quash the order under review as it relates to FECP. We deny Gordon’s petition as it relates to Tibor Hollo.
On August 17, 1993, this court affirmed a Final Judgment of Foreclosure in the litigation between Gordon and FECP.
The trial court acted in excess of its jurisdiction as to FECP when it revisited an interlocutory order entered prior to the foreclosure judgment that was affirmed by this court. “Common law certiorari is the proper vehicle to review whether the lower court acted in excess of its jurisdiction.” Hudson v. Hoffman, 471 So.2d 117, 118 (Fla. 2d DCA), rev. denied, 480 So.2d 1294 (Fla. 1985).
Moreover, the trial court was without jurisdiction to proceed with matters related to the judgment of foreclosure after appeal was taken from that final judgment. “[Wjhen a case has merged into a final judgment and an appeal has been perfected therefrom ... jurisdiction in the trial court terminates, except as to enforcement of the judgment.” State ex rel. American Home Ins. Co. v. Seay, 355 So.2d 822, 824 (Fla. 4th DCA) (trial court without jurisdiction to proceed with cross-claim while appeal from final judgment pending) (citations omitted), cert. denied, 361 So.2d 835 (Fla. 1978); see also Ponzoli v. Hawkesworth, 390 So.2d 784 (Fla. 3d DCA 1980) (trial court without jurisdiction to enter order that had impact of modifying final judgment, while appeal from that final judgment was pending).
However, this court does not have certiorari jurisdiction to review the order of September 14, 1993 as it relates to Tibor Hollo. The foreclosure judgment affirmed by this court was not final as to Hollo in his capacity as individual guarantor. Accordingly, even though the order vacating the prior partial summary judgment may have been entered in error, the trial court did have jurisdiction; any claimed error will be reviewable upon plenary appeal.
For all of the foregoing reasons, we grant Gordon’s Petition for Writ of Common Law Certiorari and quash the order under review as it relates to FECP. We deny the petition as it relates to Hollo, and remand for further consistent proceedings.
. Tibor Hollo is the president of FECP, and guaranteed, in his individual capacity, the note and mortgage between Gordon and FECP. Although Hollo was a party in his individual capacity as guarantor and participated fully in the foreclosure proceedings, he was not a party in the prior appeal before this court.
. Gordon's Petition was captioned alternatively as a Petition for Certiorari or Prohibition. Although the trial court was without jurisdiction to revisit the order of November 4, 1991, prohibition cannot "compel the undoing of something already done. It cannot be used to revoke an order already entered.” English v. McCrary, 348 So.2d 293, 297 (Fla. 1977).
. In the Final Judgment of Foreclosure which this court affirmed, the trial court specifically ruled that "[E]quity thus precludes FECP and Hollo from raising any defenses to Gordon's efforts to protect his interest in Caribbean by foreclosing his mortgage.”
. Hollo’s counterclaim against Gordon is now circumscribed by the doctrines of res judicata, estoppel by judgment, and law of the case. Findings made by the trial court in the Final Judgment of Foreclosure which this court affirmed are binding on Hollo, who, as guarantor, was a party to the foreclosure proceeding. See Federal Deposit Ins. Corp. v. Hemmerle, 592 So.2d 1110 (Fla. 4th DCA 1991), rev. denied, 601 So.2d 552 (Fla. 1992).
.Because we dispose of this matter on certiorari review, we dismiss the companion appeal from the nonfinal order as moot as it relates to FECP. We dismiss the companion appeal as to Hollo; the order is not an appealable nonfinal order.
Reference
- Full Case Name
- Robert GORDON v. Tibor HOLLO
- Cited By
- 1 case
- Status
- Published