JACK BRUCE KATZ, APPELLANT,
v.
NME HOSPITALS, INC., D/B/A WEST BOCA MEDICAL CENTER, ROGER A. LEVY, M.D., AND ROGER A. LEVY, P.A. APPELLEES
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The court held that a trial court is divested of jurisdiction to enter a final order when a non-final appeal is pending, even if that appeal is later dismissed.
Appellant appealed a non-final order granting summary judgment. While that appeal was pending, the trial court entered final judgments. This court had…
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KLEIN, J.
On February 4, 2000, appellant appealed a January 31, 2000 order granting a mor tion for summary judgment. While that appeal was pending, the trial court entered two final judgments on March 2, 2000. Those orders were also appealed.
On May 12, 2000, this court dismissed the appeal from the January 31, 2000 order because it was a non-final, non-appeal-able order. Appellant argues that we must reverse the final judgments entered on March 2, 2000 because they were entered while the non-final appeal of the January 31, 2000 order was pending. Appellant relies on rule 9.130(f) which provides:
Stay of Proceedings. 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 added.)
The Committee Notes to the rule state that the lower tribunal is “divested of jurisdiction” to enter a final order where a non-final appeal has been taken.
Appellees respond that the January 31, 2000 order was only an order granting a motion, clearly not appealable, as evidenced by our dismissal of that appeal in May. Accordingly, appellees argue, jurisdiction was not vested in this court. Appellant responds that the same factual situation was presented in Carter v. Dorman, 385 So. 2d 740 (Fla. 3d DCA 1980) in which the third district held that even though a non-final appeal was ultimately dismissed by the appellate court for lack of jurisdiction, the trial court was without jurisdiction to enter a final judgment while the non-final appeal was pending. The court reasoned, based on earlier cases, that it had jurisdiction to determine jurisdiction. We agree with Carter and therefore reverse the judgments.
DELL and GROSS, JJ., concur.
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Dragomirecky v. Town OF Ponce Inlet, 891 So. 2d 633 (Fla. 5th DCA 2005)…own of Ponce Inlet acknowledges the trial court’s ruling as being erroneous, it claims that the error is harmless. However, an order entered without jurisdiction is a nullity, and cannot be considered harmless error. See Katz v. NME Hospitals, Inc., 791 So. 2d 1127 (Fla. 4th DCA 2000)(holding that even though non-final appeal was ultimately dismissed, circuit court was without jurisdiction to enter final judgment while appeal was pending); Kessler v. City of Naples, 779 So. 2d 378 (Fla. 2d DCA 2000)(holding th…
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Tynan v. Dep't of Hwy. Safety & Motor Vehicles, 909 So. 2d 991 (Fla. 5th DCA 2005)…clear the circuit court applied the incorrect law. An order entered without jurisdiction is a nullity, and cannot be considered harmless error. See Dragomirecky v. Town of Ponce Inlet, 891 So. 2d 633 (Fla. 5th DCA 2005); Katz v. NME Hospitals, Inc., 791 So. 2d 1127 (Fla. 4th DCA 2000) (holding that even though a non-final appeal was ultimately dismissed, the circuit court was without jurisdiction to enter final judgment while the appeal was pending); Kessler v. City of Naples, 779 So. 2d 378 (Fla. 2d DCA 2000)…
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Citizens Prop. Ins. Corp. v. Scylla Props., 946 So. 2d 1179 (Fla. 1st DCA 2006)…on that basis, but express no view on the merits of any of the judgments. The circuit court lacked jurisdiction to enter final judgment in the'present case. See Brewer v. Solovsky, 899 So. 2d 497, 498 (Fla. 4th DCA 2005); Katz v. NME Hosps., Inc., 791 So. 2d 1127, 1128 (Fla. 4th DCA 2000) (citing the Committee Note to Rule 9.130(f) in ruling that the lower court loses jurisdiction to enter final judgment as long as an appeal from a non-final order is pending); Jones v. Jones, 703 So. 2d 501, 501 (Fla. 1st DC…
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- Carter v. Dorman, 385 So. 2d 740 (Fla. 3d DCA 1980)