MARTIN DRAGOMIRECKY, PETITIONER,
v.
TOWN OF PONCE INLET, ETC., RESPONDENT
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Petitioner Dragomirecky sought certiorari review of a municipal board's decision to demolish his house. The trial court dismissed his certiorari petition while his interlocutory appeal of a denied preliminary injunction motion was still pending in this court. The court granted the petition and quashed the dismissal order, holding that the trial court lacked jurisdiction to enter a final order dismissing the petition while the interlocutory appeal was pending.
The trial court lacked jurisdiction to enter the final dismissal order while the interlocutory appeal was pending. Under Florida Rule of Appellate Procedure 9.130(f), during the pendency of review of a non-final order, the lower tribunal cannot render a final order disposing of the cause. An order entered without jurisdiction is a nullity and cannot be harmless error.
[1] A lower tribunal may not render a final order disposing of a cause pending review of a non-final order.
[2] An order entered without jurisdiction is a nullity and cannot be considered harmless error.
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Join FLexlaw to unlock all legal intelligence“the lower tribunal may not render a final order disposing of the cause pending such review”
Establishes the core rule from Rule 9.130(f) that prohibits trial courts from entering final orders while non-final appeals are pending
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Join FLexlaw to unlock all legal intelligenceDragomirecky received a notice from the Town of Ponce Inlet Board of Adjustments and Appeals declaring his house unsafe and ordering its demolition. H…
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PALMER, J.
Martin Dragomirecky has filed a petition seeking certiorari review of a trial court’s dismissal order. We grant the petition and quash the dismissal order. Dragomirecky filed a petition seeking certiorari review by the trial court of the decision of the Town of Ponce Inlet Board of Adjustments and Appeals, which upheld the Town’s notice to him of an unsafe building and order to vacate and demolish his house. While said certiorari proceeding was pending in the trial court, Drago-mirecky filed a separate motion for preliminary injunction and an alternative motion for stay in the trial court in an effort to prevent the demolition of his house. These motions were denied by the trial court. Dragomirecky then filed a notice of appeal to this court seeking review of the trial court’s order denying his motions. Said appeal was still pending in this court at the time the trial court entered an order dismissing Dragomirecky’s certiorari petition.1
Dragomirecky claims that the trial court erred in dismissing his certiorari petition while his interlocutory appeal was pending in this court. We agree.
Florida Rule of Appellate Procedure 9.130(f) states the following:
Rule 9.130. Proceedings to review non-final order and specified final orders.
* * *
(f) 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 hearings; provided that the lower tribunal may not render a final order disposing of the cause pending such review.
The trial court’s order denying Dragomi-recky’s motions for preliminary injunction and stay was a non-final order because it did not complete all judicial labor in the certiorari proceeding nor dispose of the petition for certiorari with finality. As such, pursuant to the law expressed in rule 9.130(f), the trial court lacked jurisdiction to enter the final order dismissing the certiorari petition with prejudice while the interlocutory appeal was pending in this court.
Although the Town 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 that final order dismissing case while non-final appeal was pending was entered without jurisdiction and is a nullity); Sears Termite & Pest Control, Inc. v. Arnold, 743 So. 2d 597 (Fla. 1st DCA 1999)(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 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 has now been disposed of with finality by this court. See Esposito v. Horning, 416 So. 2d 896 (Fla. 4th DCA 1982)(holding that although it may sound like “legal gobbledegook” to require a trial court to re-enter a final judgment after a non-final appeal is concluded, jurisdiction is not a question a court can take or leave, and a judgment entered without jurisdiction is void). However, we do not address the issue whether the trial court applied the correct law in dismissing the certiorari proceeding, as such an analysis would be premature.
Petition GRANTED; Order QUASHED; Case REMANDED.
THOMPSON and ORFINGER, JJ., concur. . The Fifth District Court of Appeal affirmed the order denying the motions for preliminary injunction and stay on September 17, 2004. See Dragomirecky v. Town of Ponce Inlet, 882 So. 2d 495 (Fla. 5th DCA, 2004).
. Although all of the above-cited cases involved appeals, rule 9.130(f) also applies to certiorari proceeding.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Tynan v. Dep't of Hwy. Safety & Motor Vehicles, 909 So. 2d 991 (Fla. 5th DCA 2005)…tition for certiorari which we are reviewing in this case, it is 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 pend…
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Kathy Ann Garcia-Lawson, Ph.D. v. Lawson, 82 So. 3d 137 (Fla. 4th DCA 2012)…le to mean that a trial court lacks the jurisdiction to render a final order while an appeal from a non-final order in the same case is pending and, if the trial court does so, the final order is a nullity. E.g., Dragomirecky v. Town of Ponce Inlet, 891 So. 2d 633, 634 (Fla. 5th DCA 2005) (“[A]n order entered without jurisdiction is a nullity, and cannot be considered harmless error.” (citations omitted)); Connor Realty, Inc. v. Ocean Terrace N. Condo. Ass’n, 572 So. 2d 4, 4 (Fla. 4th DCA 1990) (“[A] trial co…
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Anderson v. State, 93 So. 3d 1201 (Fla. 1st DCA 2012)…mmitment order issued by a trial court lacking jurisdiction is a nullity. Sessions v. State, 907 So. 2d 572, 573 (Fla. 1st DCA 2005) (providing that an order entered by a court without jurisdiction is a nullity); Dragomirecky v. Town of Ponce Inlet, 891 So. 2d 633, 634 (Fla. 5th DCA 2005) ("[A]n order entered without jurisdiction is a nullity, and cannot be considered harmless error.”). Thus, despite Judge Makar's suggestion to the contrary, no logical basis exists to distinguish the cases on grounds that a t…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dep't of Health & Rehabilitative Servs. v. State, 416 So. 2d 896 (Fla. 4th DCA 1982)
- Esposito v. Horning, 416 So. 2d 896 (Fla. 4th DCA 1982)
- Katz v. NME Hosps., Inc., 791 So. 2d 1127 (Fla. 4th DCA 2000)
- Dragomirecky v. Town OF Ponce Inlet, 882 So. 2d 495 (Fla. 5th DCA 2004)
- Kessler v. City OF Naples, 779 So. 2d 378 (Fla. 2d DCA 2000)
- MML Dev. Corp v. Eagle Nat'l Bank OF Miami, 597 So. 2d 968 (Fla. 5th DCA 1992)
- Lott v. State, 743 So. 2d 597 (Fla. 1st DCA 1999)
- Sears Termite & Pest Control, Inc. v. Arnold, 743 So. 2d 597 (Fla. 1st DCA 1999)