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Katz v. NME Hospitals, Inc.

District Court of Appeal of Florida, Fourth District
Dec 6, 2000
791 So. 2d 1127 (Fla. Dist. Ct. App. 2000)

Summary

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

Summary of this case from Tynan v. Department of Highway Safety

Opinion

No. 4D00-613.

Opinion filed December 6, 2000.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge; L.T. Case Nos. CL 96-7087 (AF) CL 98-3542 (AF).

Barbara Greenblatt of Barbara Greenblatt, P.A., Boca Raton, for appellant.

James C. Sawran and Jack Heda of McIntosh, Sawran, Peltz Cartaya, P.A., Fort Lauderdale, for Appellee-NME Hospitals.

Judith A. Bass of the Law Offices of Robert I. Rubin, Fort Lauderdale, for Appellee-Roger A. Levy, M.D. and Roger A. Levy, P.A.


On February 4, 2000, appellant appealed a January 31, 2000 order granting a motion 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-appealable 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.


Summaries of

Katz v. NME Hospitals, Inc.

District Court of Appeal of Florida, Fourth District
Dec 6, 2000
791 So. 2d 1127 (Fla. Dist. Ct. App. 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

Summary of this case from Tynan v. Department of Highway Safety

holding that even though non-final appeal was ultimately dismissed, circuit court was without jurisdiction to enter final judgment while appeal was pending

Summary of this case from Dragomirecky v. Town of Ponce Inlet

agreeing with Carter v. Dorman, 385 So.2d 740 (Fla. 3d DCA 1980)

Summary of this case from McKenna v. Camino Real Village Ass'n

noting that committee notes to rule 9.130(f) point out that the lower tribunal is divested of jurisdiction to enter a final order during a nonfinal appeal

Summary of this case from Bemben v. Chock

noting that committee notes to rule 9.130(f) point out that the lower tribunal is divested of jurisdiction to enter a final order during a nonfinal appeal

Summary of this case from Bemben v. Chock
Case details for

Katz v. NME Hospitals, Inc.

Case Details

Full title:JACK BRUCE KATZ, Appellant, v. NME HOSPITALS, INC., d/b/a WEST BOCA…

Court:District Court of Appeal of Florida, Fourth District

Date published: Dec 6, 2000

Citations

791 So. 2d 1127 (Fla. Dist. Ct. App. 2000)

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