FOUNDRY MANUFACTURING INC v. CARNER (2007)

U.S. Foundry & Manufacturing, Inc., appeals an order denying its motion to dismiss and granting a rule nisi enforcing temporary disability benefits awarded to its employee, Vaughn Carner.   We reverse.

Carner filed a worker's compensation action against U.S. Foundry and was awarded permanent and temporary disability benefits.   U.S. Foundry appealed to the First District Court of Appeal.  U.S. Foundry & Mfg., Inc. v. Carner, 951 So.2d 927 (Fla. 1st DCA 2007).   During the pendency of the appeal, Carner petitioned the circuit court for a rule nisi to enforce the temporary benefits. § 440.24(1), Fla. Stat. (2006).  Carner argued that the temporary benefits issue had been abandoned on appeal because they were not included as an issue in the initial brief.   See Fla. R.App. P. 9.180(d)(1).   Hence, Carner asserted that the circuit court had jurisdiction to issue the rule nisi.   U.S. Foundry filed a motion to dismiss the case, arguing that the court had no jurisdiction in view of the pending appeal.

The circuit court denied the dismissal motion, finding that the issue had been abandoned on appeal, and granted the rule nisi.   U.S. Foundry appeals.

 The court erred in granting the application for the rule nisi.   “[T]he circuit court's jurisdiction, on the claimant's application for a rule nisi, is solely limited to enforcing the terms of such a compensation order if the latter is still in full force and effect.”  North Shore Medical Center v. Capua, 634 So.2d 1141, 1143 (Fla. 3d DCA 1994).   Accord Maranje v. Brinks of Florida, Inc., 610 So.2d 1293 (Fla. 3d DCA 1992);  Venne v. Kleuver, 435 So.2d 350 (Fla. 3d DCA 1983).   The rule nisi in this case was premature because the appeal from the worker's compensation award was pending.   The employer's notice of appeal divested the circuit court of jurisdiction to consider the application for rule nisi.   See Fla. R.App. P. 9.180(c)(1)(lower tribunal retains jurisdiction to decide issues not subject to review on appeal).   The employer listed the temporary benefits, which were the subject of the rule nisi proceeding, in its notice of appeal.  Fla. R.App. P. 9.180(c)(3).   Hence, the court's order enforcing these benefits went beyond its rule nisi jurisdiction.

Based on the foregoing, we reverse the order on appeal.

Reversed.

PER CURIAM.