MML DEVELOPMENT CORP, ETC., ET AL., APPELLANT,
v.
EAGLE NATIONAL BANK OF MIAMI, ETC., APPELLEE
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W. SHARP, Judge.
Appellee’s motion to dismiss this appeal is granted. Appellants are attempting to appeal from a “final summary judgment” entered after a non-final appeal involving venue had been perfected. The “final” order was final in all regards except for the last paragraph which provides it will not become final “pending review” of the venue non-final appeal.
This is an attempt to end-run around the provisions of Florida Rule of Appellate Procedure 9.130(f) which provides:
In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review, (emphasis supplied)
Under the rule, the trial court lacked jurisdiction to enter such a final order pending the final disposition of the non-final appeal. See Connor Realty, Inc. v. Ocean Terrace North Condominium Ass’n., 572 So. 2d 4 (Fla. 4th DCA 1990); Esposito v. Horning, 416 So. 2d 896 (Fla. 4th DCA 1982). We therefore vacate the order sought to be appealed in this case and dismiss this appeal. See, e.g., Sammons v. Sammons, 479 So. 2d 223 (Fla. 3d DCA 1985).
SUMMARY JUDGMENT VACATED; APPEAL DISMISSED.
GRIFFIN and DIAMANTIS, JJ„ concur.
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Hastings v. Demming, 682 So. 2d 1107 (Fla. 2d DCA 1996)…h the restriction of Florida Rule of Appellate Procedure 9.130(f), which prohibits a court, even in the absence of a stay, from rendering a final order during the pendency of a nonfinal appeal. See, e.g., MML Dev. Corp. v. Eagle Nat’l Bank of Miami, 597 So. 2d 968, 969 (Fla. 5th DCA 1992) (under rule 9.130(f) trial court without jurisdiction to enter final order pending final disposition of nonfinal appeal). Furthermore, as we perceive the law, a denial of a motion for summary judgment involving “unresolved…1 / 2
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Dragomirecky v. Town OF Ponce Inlet, 891 So. 2d 633 (Fla. 5th DCA 2005)…holding that trial court lacked jurisdiction to enter final judgment dismissing complaint against two defendants while non-final appeal of order denying temporary injunction was pend [*635] ing); see also MML Dev. Corp. v. Eagle Nat’l Bank of Miami, 597 So. 2d 968 (Fla. 5th DCA 1992).2 Accordingly, the trial court’s order dismissing Dragomirecky’s certiorari petition is quashed. We note that, on remand, the trial court is authorized to enter another dismissal order since Dragomirecky’s interlocutory appeal h…
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Tynan v. Dep't of Hwy. Safety & Motor Vehicles, 909 So. 2d 991 (Fla. 5th DCA 2005)…ng that the trial court lacked jurisdiction to enter a final judgment dismissing a complaint against two defendants while a non-final appeal of an order denying temporary injunction was pending). See also MML Dev. Corp. v. Eagle Nat’l Bank of Miami, 597 So. 2d 968 (Fla. 5th DCA 1992). Further, it appears this error was not harmless in the sense that it was not prejudicial. Tynan relied on the correct rule of appellate law at this second hearing in assuming it would be continued. That was the reason she did n…
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- Sammons v. Sammons, 479 So. 2d 223 (Fla. 3d DCA 1985)
- Dep't of Health & Rehabilitative Servs. v. State, 416 So. 2d 896 (Fla. 4th DCA 1982)
- Connor Realty, Inc. v. Ocean Terrace N. Condo. Ass'n, 572 So. 2d 4 (Fla. 4th DCA 1990)
- Esposito v. Horning, 416 So. 2d 896 (Fla. 4th DCA 1982)