RUSTY L. BENJAMIN AND AIDA BENJAMIN, APPELLANTS,
v.
PAUL FORE AND MARY FORE, APPELLEES
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The Benjamins sued the Fores for a constructive trust on property and appealed an adverse summary judgment. The appellate court vacated the judgment and dismissed the appeal because the trial court lacked jurisdiction to enter a final judgment while the Benjamins' nonfinal appeal was already pending.
A trial court lacks jurisdiction to enter a final judgment while a nonfinal appeal is pending before the appellate court. Once an appeal is duly taken, jurisdiction of the cause is transferred to the appellate court, depriving the trial court of power to finally dispose of the cause. The final judgment entered during the pendency of the nonfinal appeal is void.
[1] A lower tribunal may not render a final order disposing of the cause while a nonfinal appeal is pending.
[2] A judgment entered by a trial court while a nonfinal appeal is pending is void.
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Join FLexlaw to unlock all legal intelligence“where an appeal is duly taken, whether or without supersedeas, jurisdiction of the cause is transferred to the appellate court, thereby depriving the trial court of the power to [f]inally dispose of the cause by dismissal or otherwise”
Establishes the fundamental principle that appellate jurisdiction transfers upon a timely appeal, divesting the trial court of authority to enter final orders
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Join FLexlaw to unlock all legal intelligenceRusty and Aida Benjamin sued Paul and Mary Fore, claiming a constructive trust on property that the Fores had purchased. The trial court entered a fin…
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NORTHCUTT, Chief Judge.
Rusty and Aida Benjamin sued Paul and Mary Fore, claiming a constructive trust on property purchased by the Fores, and the Benjamins appeal an adverse final summary judgment. We decline to reach the merits of the appeal at this time because the final judgment was rendered while the Benjamins’ nonfinal appeal was pending in this court. See Benjamin v. Fore, 969 So. 2d 1025 (Fla. 2d DCA 2007) (table decision). “It has long been held that where an appeal is duly taken, whether with or without supersedeas, jurisdiction of the cause is transferred to the appellate court, thereby depriving the trial court of the power to [flinally dispose of the cause by dismissal or otherwise.” De La Portilla v. De La Portilla, 304 So. 2d 116, 118 (Fla.1974); see also Fla. R.App. P. 9.130(f) (providing that a “lower tribunal may not render a final order disposing of the cause” while a nonfinal appeal is pending). In response to our show cause order, the Benjamins have conceded this point.
In similar circumstances, where a circuit court entered final judgment during the pendency of a nonfinal appeal in the case, this court acted sua sponte to vacate the judgment and dismiss the appeal. Napoleonic Soc’y of Am., Inc. v. Snibbe, 696 So. 2d 1243 (Fla. 2d DCA 1997) (calling final judgment a nullity when circuit court lacked jurisdiction due to pending nonfinal appeal); Kessler v. City of Naples, 779 So. 2d 378 (Fla. 2d DCA 2000). As the Fourth District has explained, “jurisdiction is not a question a court can take or leave, and a judgment entered without jurisdiction is void.” Esposito v. Horning, 416 So. 2d 896, 898 (Fla. 4th DCA 1982) (reversing nonfinal order and noting that final judgment, entered while nonfinal appeal was pending, was void). Consistent with Kessler and Snibbe, we vacate the final judgment and dismiss the appeal.
Final judgment vacated; appeal dismissed.
DAVIS, J., and MASTERS, ELLEN S., Associate Judge, Concur.
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Gilliard v. Gilliard, 162 So. 3d 1147 (Fla. 5th DCA 2015)…. Co. of Shelby, Ohio v. Pearson, 236 So. 2d 1, 3 (Fla.1970); Levy v. Levy, 900 So. 2d 737, 745-46 (Fla. 2d DCA 2005). Since the trial court lacked jurisdiction to enter the second amended final judgment, that judgment is void. See Benjamin v. Fore, 995 So. 2d 543, 544 (Fla. 2d DCA 2008). Nevertheless, we have jurisdiction because Former Husband filed the notice of appeal within 30 days of the rendition of the first amended final judgment of dissolution of marriage, and the errors raised by Former Husband on…
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Benjamin v. Fore, 995 So. 2d 543 (Fla. 2d DCA 2008)
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Rubin Schron v. Nunziata, 136 So. 3d 684 (Fla. 2d DCA 2014)…iable for $200 million in damages in the underlying case. We vacate the final judgment entered in 2D12-5960 and dismiss the appeal. The trial court was without jurisdiction to enter the final judgment. See Fla. R. App. P. 9.130(f); Benjamin v. Pore, 995 So. 2d 543, 544 (Fla. 2d DCA 2008). . The patties have advised us that there are pending bankruptcy proceedings related to this case. We offer no comment as to the impact of those proceedings on this matter.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- DE LA Portilla v. DE LA Portilla, 304 So. 2d 116 (Fla. 1974)
- 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)
- The Napoleonic Soc'y OF Am., Inc. v. Snibbe, 696 So. 2d 1243 (Fla. 2d DCA 1997)
- Kessler v. City OF Naples, 779 So. 2d 378 (Fla. 2d DCA 2000)
- Benjamin v. Fore, 995 So. 2d 543 (Fla. 2d DCA 2008)