Geico v. Rodriguez

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED GEICO GENERAL INSURANCE COMPANY, ETC. , Petitioner, v. Case No. 5D14-3557 HERMILIO RODRIGUEZ, INDIVIDUALLY, ETC., Respondent. ________________________________/ Opinion filed December 5, 2014 Petition for Certiorari Review of Order from the Circuit Court for Orange County, Robert J. Egan, Judge. Angela C. Flowers, of Kubicki Draper, P.A., Ocala, for Petitioner. Thomas Andrew Player, of The Nation Law Firm, Longwood, for Respondent. ON CONFESSION OF ERROR LAMBERT, J. Geico General Insurance Company petitions for a writ of certiorari to review an order granting Respondent’s second motion for mandatory judicial notice. We have jurisdiction.1 Pending before this court in a separate case involving these parties is the 1 See Art. V, § 4(b)(3), Fla. Const.; Fla. R. App. P. 9.030(b)(2). direct appeal of a final judgment rendered in favor of Geico. In that appeal, we entered an order relinquishing jurisdiction for the limited purpose of addressing Rodriguez’s Florida Rule of Civil Procedure 1.540(b)(2) motion for relief from judgment. The trial court, in its September 23, 2014 order, not only addressed the motion for relief from judgment, but also granted Respondent’s second motion for mandatory judicial notice. A trial court’s action on matters outside the express purpose of our relinquishment of jurisdiction results in a void order. See Hernandez v. Hernandez, 924 So. 2d 853, 855 (Fla. 2d DCA 2006). Certiorari is the appropriate remedy to quash an order issued in excess of the lower tribunal’s jurisdiction. See Morse v. Moxley, 691 So. 2d 504, 506 (Fla. 5th DCA 1997). Respondent professionally confesses error, and concedes that Geico’s petition for common law certiorari should be granted. We agree. Accordingly, we grant the petition and quash the portion of the September 23, 2014 order that granted Respondent’s second motion for mandatory judicial notice. PETITION FOR WRIT OF CERTIORARI GRANTED; ORDER QUASHED, in part. ORFINGER and LAWSON, JJ., concur. 2

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