Holding Electric, Inc. v. Roberts

PER CURIAM. Following oral argument, the presiding panel of the court, pursuant to Florida Rule of Appellate Procedure 9.331, requested en banc review to consider departing from the prior decision of this court in Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3d DCA 1975), and to adopt McMahan Constr. Co., Inc. v. Carol’s Care Center, Inc., 460 So.2d 1001 (Fla. 5th DCA 1984). Counsel were invited to submit briefs directed to the issue and, the court, after reviewing the briefs and discussing the issues, decided against receding from the Mardan decision. In the absence of a decision by the court en banc1 to overrule Mardan, the present panel is bound by that decision. See In Re Rule 9.331, 416 So.2d 1127 (Fla.1982). Accordingly, the court is required to follow the Mardan decision and to affirm. We certify express conflict with McMahan. Affirmed. Footnotes [1] The court as a whole has not agreed to the panel’s request for en banc consideration of this case.