JACK STEWART AND FLORA STEWART, APPELLANTS,
v.
SHELDON GOLDING ET AL., APPELLEES
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The Florida District Court of Appeal affirmed the trial court's denial of defendants' motion to dismiss a condominium possession complaint but remanded because the trial court improperly entered final judgment while an interlocutory appeal was pending before the appellate court.
The trial court did not err in denying the motion to dismiss; the complaint was sufficient to survive the motion. However, the trial court lacked jurisdiction to enter final judgment while the interlocutory appeal was pending before the appellate court. Although the trial court had the right to proceed with the case and enter a default against the appellants for failure to plead, the final judgment must be struck.
[1] A trial court lacks jurisdiction to enter a final judgment while an interlocutory appeal challenging the sufficiency of the complaint is pending.
[2] A trial court retains the right to proceed with a suit, including entering a default, even when an interlocutory appeal of an order requiring a party to plead has been ta…
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Join FLexlaw to unlock all legal intelligence“Reviewing the complaint in the light of the bare bones motion to dismiss, we find that no error has been demonstrated in the order denying the motion to dismiss.”
Establishes the standard of review for motions to dismiss and confirms the complaint was sufficient.
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Join FLexlaw to unlock all legal intelligencePlaintiffs Jack and Flora Stewart brought an action claiming the right to possession of a condominium against defendants including Sheldon Golding. Th…
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PER CURIAM.
The defendants appeal an order of the trial court denying their motion to dis miss the complaint in an action in which the plaintiff claimed the right to possession of a condominium. Appellants contend that the court erred in denying the motion, which simply stated that the complaint “fails to state a cause of action and a claim upon which relief can be granted.” Reviewing the complaint in the light of the bare bones motion to dismiss, we find that no error has been demonstrated in the order denying the motion to dismiss. See RCP 1.100(b).
Appellants have filed a motion for stay of proceedings in the trial court. From the record submitted therewith, it is apparent that the trial judge has proceeded to a final judgment in this cause during the time jurisdiction of the matters covered by the interlocutory appeal was in this court. Accordingly, we hold that the trial court was without jurisdiction to proceed to final judgment while the question of the sufficiency of the complaint to withstand a motion to dismiss was pending in this court. See De La Portilla v. De La Portilla, Fla.1974, 304 So. 2d 116. Therefore, this cause will be remanded with directions to enter an order striking the final judgment heretofore entered in this cause.
It is also apparent from the record submitted that a default has been entered against the appellants for their failure to plead to the complaint as required by the order denying their motion to dismiss. Appellants urge that the entry of the default is beyond the power of the trial court inasmuch as they had appealed the order requiring them to plead. This position is not well-taken because the trial court has the right to proceed in a suit even though an interlocutory appeal has been taken to test the correctness of an interlocutory order. See Hirsch v. Hirsch, Fla.App.1975, 309 So. 2d 47; and see FAR 5.1.
Therefore, the order appealed is affirmed and the cause remanded with directions to strike the final judgment entered by the trial court during the pendency of this cause and to proceed regularly upon the default heretofore entered.
Affirmed in part and remanded with directions.
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Reflex, N.V. v. The Umet Tr., 336 So. 2d 473 (Fla. 3d DCA 1976)…stands, this error would be cured by a remand to the trial court with directions to strike the final judgment previously entered and to enter a new final judgment upon the holdings of this court on this appeal. See Stewart v. Golding, Fla.App. 1976, 327 So. 2d 879. We conclude that under the facts and circumstances of this case, it would be useless to enter such an order. We, therefore, note the error but hold the same to be harmless in this case. The remaining points presented by appellant, have been consid…
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State v. Carr, 373 So. 2d 657 (Fla. 1979)…ndingly deprived of power to enter further orders in these cases while their appeals [*659] remained pending.2 De La Portilla v. De La Portilla, 304 So. 2d 116 (Fla.1974), Moody v. Volusia County, 90 Fla. 864, 107 So. 185 (1925); Stewart v. Golding, 327 So. 2d 879 (Fla. 3d DCA 1976). Consequently, the order of the county court vacating the judgments is void. Appellees should have sought relief in the tribunal which currently possessed jurisdiction over their case— the circuit court. In that the order constru…
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Martin v. City OF Islandia, 378 So. 2d 810 (Fla. 3d DCA 1979)…t in appeal No. 79-586. The trial court did not have the jurisdiction to dismiss the appellants’ claims; in this connection, see the following authorities: Mandrachia v. Ravenswood Marine, Inc., 118 So. 2d 817 (Fla. 2d DCA 1960); Stewart v. Golding, 327 So. 2d 879 (Fla. 3d DCA 1976); Levitt v. Vermuccio, 353 So. 2d 178 (Fla. 3d DCA 1977); General Portland Land Development Company v. Stevens, 356 So. 2d 840 (Fla. 4th DCA 1978); Rule 9.130(f), Florida Appellate Rules. Therefore, the two orders under review be…
Authorities Cited
- DE LA Portilla v. DE LA Portilla, 304 So. 2d 116 (Fla. 1974)
- Patterson v. State, 309 So. 2d 47 (Fla. 1st DCA 1975)