DR. PHILIP GLATSTEIN, LYNN GLATSTEIN, LEONARD TURKEL AND ANNSHEILA TURKEL, APPELLANTS,
v.
THE CITY OF MIAMI, A FLORIDA MUNICIPAL CORPORATION, AND DIPLOMAT WORLD ENTERPRISES, LTD., A LIMITED PARTNERSHIP UNDER THE LAWS OF THE STATE OF FLORIDA, APPELLEES
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The appellate court affirmed the trial court's order denying appellants' motion to set aside a final judgment under Florida Rule of Civil Procedure 1.540(b) because the trial court lacked jurisdiction while the appeal was pending. The court held that the pendency of an appeal divests the trial court of jurisdiction to entertain such motions absent relinquishment of jurisdiction by the appellate court.
The trial court properly lacked jurisdiction to entertain the Rule 1.540(b) motion because the pendency of the appeal divested it of jurisdiction in the absence of the appellate court relinquishing jurisdiction. However, the appellants may renew the motion after their appeal concludes.
[1] A trial court lacks jurisdiction to entertain a motion to set aside a final judgment pursuant to Rule 1.540(b) when an appeal from that judgment is pending before an appe…
[2] The pendency of an appeal from a final judgment divests the trial court of jurisdiction to rule on a Rule 1.540(b) motion concerning that judgment.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The pendency of that appeal divested the trial court of jurisdiction to entertain the motion in the absence of our having relinquished jurisdiction to the trial court for that purpose.”
Establishes the core jurisdictional rule that an appellate court's pending appeal strips the trial court of jurisdiction over post-judgment motions.
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Join FLexlaw to unlock all legal intelligenceAppellants filed a Rule 1.540(b) motion in trial court to set aside a final judgment against them while their appeal from that judgment was already pe…
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DANIEL S. PEARSON, Judge.
We affirm the trial court’s order denying, for lack of jurisdiction, the appellants’ motion, pursuant to Florida Rule of Civil Procedure 1.540(b), to set aside a final judgment against them.
When appellants’ Rule 1.540(b) motion was filed in and ruled upon by the trial court, their appeal from the final judgment was pending in this court. The pendency of that appeal divested the trial court of jurisdiction to entertain the motion in the absence of our having relinquished jurisdiction to the trial court for that purpose. Leo Goodwin Foundation, Inc. v. Riggs National Bank of Washington, D. C., 374 So. 2d 1018 (Fla. 4th DCA 1979) 1; Redwing Carriers, Inc. v. Watson, 341 So. 2d 1049 (Fla. 4th DCA 1977); Hardwicke Companies, Incorporated v. Freed, 292 So. 2d 610 (Fla. 2d DCA 1974); Hutchison v. Wintrode, 286 So. 2d 231 (Fla. 2d DCA 1973).
The trial court’s order denying appellants’ Rule 1.540(b) motion is affirmed without prejudice to appellants renewing the motion in the trial court when their appeal from the final judgment is concluded. Our prior order refusing to relinquish jurisdiction to the trial court does not constitute an expression of our views on the merits of appellants’ Rule 1.540(b) motion. Moreover, appellants’ motion to relinquish, although denied by us, tolls the one-year time limitation under Rule 1.540(b)(l-3). See Redwing Carriers, Inc. v. Watson, supra. Compare Seven Up Bottling Company of Miami, Inc. v. George Construction Corp., 153 So. 2d 11 (Fla. 3d DCA 1963) (holding that the one-year limitation of Rule 1.540 is not tolled by the filing of the appeal).
Affirmed.
. In Goodwin, the court noted that the rule of Ohio Casualty Group v. Parrish, 350 So. 2d 466 (Fla.1977), that relinquishment of jurisdiction to the trial court is not required, applies only when the appeal is no longer pending and the appellate court has issued its mandate. Of course, based on other jurisdictional considerations, a trial court may not entertain a post-mandate motion, made under the guise of Rule 1.540(b), which seeks the very same relief which the appellate court has denied. Joyner v. Ettlinger, 382 So. 2d 31 (Fla. 1st DCA 1980).
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Citator
Cited By (18 total)
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Pruitt v. Brock, 437 So. 2d 768 (Fla. 1st DCA 1983)…whether the one-year time period in rule 1.540 may in some way be tolled are not directly on point, they generally support our conclusion. In both Redwing Carriers, Inc. v. Watson, 341 So. 2d 1049 (Fla. 4th DCA 1977) and Glatstein v. City of Miami, 391 So. 2d 297 (Fla. 3d DCA 1980), the issue was whether the one-year time period is tolled when, during the pendency of a direct appeal, a 1.540(b) motion is timely filed in the trial court, a motion for relinquishment of jurisdiction is filed in the appellate co…
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Bailey v. Bailey, 392 So. 2d 49 (Fla. 3d DCA 1981)…nal judgment being appealed renders it without jurisdiction to entertain a Florida Rule of Civil Procedure 1.540(b) motion while an appeal is pending in the absence of the appellate court’s relinquishment of jurisdiction. Glatstein v. City of Miami, 391 So. 2d 297 (Fla. 3d DCA 1980); Weinschel v. Weinschel, 368 So. 2d 388 (Fla. 3d DCA 1979). . The purpose of an award of attorneys’ fees in proceedings for dissolution of marriages or enforcement or modification of proceedings attendant upon the marital relatio…
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Eileen and Charles Ferrara v. Belcher Indus., Inc., 483 So. 2d 477 (Fla. 3d DCA 1986)…udgment. The May 20, 1985 notice of appeal invoked the jurisdiction of this court. Once that occurred, the trial court was without jurisdiction to proceed, on June 10 and June 14, on the motion for relief from judgment. Glatstein v. City of Miami, 391 So. 2d 297 (Fla. 3d DCA 1980); Edward J. DeBartolo Corp. v. Dryvit Systems, Inc., 368 So. 2d 85 (Fla. 2d DCA 1979). The order vacating the final judgment is reversed and the cause is remanded for an evidentiary hearing on the timely filed motion for relief fro…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Ohio Cas. Grp. v. Parrish, 350 So. 2d 466 (Fla. 1977)
- Seven-Up Bottling Co. OF Miami, Inc. v. George Constr. Corp., 153 So. 2d 11 (Fla. 3d DCA 1963)
- LEO Goodwin Found., Inc. v. The Riggs Nat'l Bank OF Wash., 374 So. 2d 1018 (Fla. 4th DCA 1979)
- Hutchison v. Wintrode, 286 So. 2d 231 (Fla. 2d DCA 1973)
- Redwing Carriers, Inc. v. Watson, 341 So. 2d 1049 (Fla. 4th DCA 1977)
- Joyner v. Ettlinger, 382 So. 2d 31 (Fla. 1st DCA 1980)
- State v. Nieman, 292 So. 2d 610 (Fla. 4th DCA 1974)
- Hardwicke Cos. v. Freed, 292 So. 2d 610 (Fla. 2d DCA 1974)