JAMES H. CHAPMAN AND ANNA L. CHAPMAN, APPELLANTS,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, A CORPORATION; TIFFIN MOTOR HOMES, A CORPORATION; AND WESTERN SURETY COMPANY, A CORPORATION, APPELLEES
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A trial court lacks jurisdiction to enter a nunc pro tunc order after an appeal has been taken, and such an order cannot vest appellate jurisdiction.
[1] A trial court lacks jurisdiction to render a nunc pro tunc order after an appeal has been taken.
[2] An appellate court has the inherent power to determine if it has jurisdiction over a particular appeal.
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Join FLexlaw to unlock all legal intelligenceAppellants responded to an order to show cause regarding an appeal from non-final orders by submitting a nunc pro tunc order purporting to dismiss cau…
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WIGGINTON, Judge.
This Court ordered the appellants to show cause why the appeal should not, sua sponte, be dismissed as one from nonap-pealable, non-final orders merely granting motions to dismiss. See Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392 (Fla.1983); and Johnson v. First City Bank of Gainesville, 491 So. 2d 1217 (Fla. 1st DCA 1986). Appellants filed a response revealing that the parties to the appeal had entered into a stipulation supplementing the record pursuant to rule 9.200(f), Florida Rules of Appellate Procedure, and attached thereto a certified copy of a “Final Order Nunc Pro Tunc Granting Dismissal of Causes of Action with Prejudice and Dismissing the Parties from this Action and the Complaint.” In considering the propriety of appellants’ response and the attachment of the nunc pro tunc order in regard to whether such stipulation and order could vest jurisdiction in this Court, we have concluded that the circuit court did not have jurisdiction to enter such order. In Johnson v. First City Bank of Gainesville, we recognized that “the appellate court has the inherent power to determine if it has jurisdiction over a particular appeal_” 491 So. 2d at 1218. Thus, the issue is whether a trial court has jurisdiction to enter an order nunc pro tunc during this “inchoate” appellate jurisdiction so. as to thereby vest jurisdiction in the appellate court by virtue of said order. An earlier opinion from the Court held that a trial court lacks jurisdiction to render a nunc pro tunc order after an appeal has been taken. See Fritz v. Sroczyk, 202 So. 2d 796 (Fla. 1st DCA 1967). That holding, of course, is in line with modern rule 9.600, Florida Rules of Appellate Procedure, which limits a trial court’s concurrent jurisdiction to render orders to the period of time prior to when the record is transmitted.
One might argue that since we did not have jurisdiction to consider this appeal, as it was from an order merely granting a motion to dismiss, the trial court retained jurisdiction to enter the order. However, the Third District Court of Appeal in Carter v. Dorman, 385 So. 2d 740 (Fla. 3d DCA 1980), found that to be a distinction without a difference. Therein the court reversed an order denying a motion to set aside a final judgment under rule 1.540(b)(4), Florida Rules of Civil Procedure, on the basis that
... (a) the original judgment was entered without jurisdiction while an appeal from a non-final trial court order was pending in this Court [citation omitted]; (b) this result is not changed by the fact that the above-stated interlocutory appeal was subsequently dismissed for lack of jurisdiction [citation omitted], as this court still had jurisdiction to determine whether it had jurisdiction over the subject appeal which thereby deprived the trial court of jurisdiction to dispose finally of the cause during the pendency of said appeal [citations omitted]; and (c) the trial court now has jurisdiction to enter a new final judgment based upon the jury verdict previously rendered in this cause. [Citation omitted.]
385 So. 2d at 741 (emphasis added). We agree with the Carter analysis, which takes on greater significance in light of our opinion in Johnson holding that
... although the appellate court has the inherent power to determine if it has jurisdiction over a particular appeal, once it is determined that it does not have jurisdiction, the appellate court may not “relinquish” this nonexistent jurisdiction for the entry of a proper order which would then invest the appellate court with jurisdiction to hear the appeal.
491 So. 2d at 1218.1
We reason from the Johnson holding that if this Court cannot relinquish its “nonexistent jurisdiction” for the entry of a proper order, certainly the parties and the trial court — which lacks jurisdiction by virtue of the appeal — cannot vest this Court with jurisdiction by way of a nunc pro tunc order. On the basis of the foregoing, we conclude that we do not have jurisdiction to consider this appeal. Therefore, the appeal is DISMISSED for lack of jurisdiction.
THOMPSON and NIMMONS, JJ., concur. . However, in so holding, we noted that the Third District in Gries Investment Company v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980), would accommodate the parties in such a situation by relinquishing jurisdiction to the trial court. We stated that "we are not inclined to encourage the trial bench and bar in practices which result in the appeal of such nonap-pealable orders by accommodating the parties as our sister court has done in Gries." Johnson, 491 So. 2d at 1218.
Cases With Similar Vibessemantic neighbors from the corpus
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Yost v. Am. Nat'l Bank, 570 So. 2d 350 (Fla. 1st DCA 1990)…der was not final, but granted leave to amend. This second appeal is dismissed, because it was taken from a non-final, non-appealable order. See State v. Smith, 557 So. 2d 904 (Fla. 1st DCA 1990); Chapman v. Universal Underwriters Insurance Company, 549 So. 2d 679, 680 (Fla. 1st DCA 1989); Johnson v. First City Bank of Gainesville, 491 So. 2d 1217, 1218 (Fla. 1st DCA 1986); Arcangeli v. Albertson’s, Inc., 550 So. 2d 557, 558 (Fla. 5th DCA 1989); White Palms of Palm Beach, Inc. v. Fox, 525 So. 2d 518, 519 (Fla…
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State v. Smith, 557 So. 2d 904 (Fla. 1st DCA 1990)…t may not “relinquish” this nonexistent jurisdiction for the entry of a proper order which would then invest the appellate court with jurisdiction to hear the appeal. 491 So. 2d at 1218; see also Chapman v. Universal Underwriters Insurance Company, 549 So. 2d 679 (Fla. 1st DCA 1989); Arcangeli v. Albertson’s, Inc., 550 So. 2d 557 (Fla. 5th DCA 1989). The defendant has filed a notice of cross appeal on February 24,1989, in which he challenges the judgment and sentence rendered by the trial court on February…
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State v. Arnold, 550 So. 2d 154 (Fla. 5th DCA 1989)…a reason for departure. However, the successor judge lacked jurisdiction to enter the notation because jurisdiction had vested in this Court due to the appeal which had already been taken by the State. See Chapman v. Universal Underwriters Ins. Co., 549 So. 2d 679 (Fla. 1st DCA 1989); Yurgel v. Yurgel, 546 So. 2d 746 (Fla. 4th DCA 1989). The failure to provide written reasons for departure does not end the problems with the sentence imposed. The sentence is an illegal sentence because it imposes a split sent…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)
- Bd. of Cnty. Comm'rs of Madison Cnty. v. Grice, 438 So. 2d 392 (Fla. 1983)
- Johnson v. First City Bank OF Gainesville & J. Emory Cross, 491 So. 2d 1217 (Fla. 1st DCA 1986)
- Carter v. Dorman, 385 So. 2d 740 (Fla. 3d DCA 1980)
- Fritz v. Sroczyk, 202 So. 2d 796 (Fla. 1st DCA 1967)