Bemben v. Chock, 938 So. 2d 565 (Fla. 2d DCA 2006). · Go Syfert
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Bemben v. Chock, 938 So. 2d 565 (Fla. 2d DCA 2006). Cases Citing This Book View Copy Cite
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A trial court lacks jurisdiction to enter a final order disposing of a cause while an interlocutory appeal of a non-final order is pending.

After the buyers sued the sellers for specific performance of a real estate contract, the trial court entered a final summary judgment in favor of the buyers. However, the sellers had an interlocutory appeal pending regarding an order denying their motion to dissolve a lis pendens. The court must determine whether a trial court lacks jurisdiction to enter a final order while a non-final order is under review. Under the applicable rules of appellate procedure, a lower tribunal is divested of jurisdiction to render a final order disposing of the cause during the pendency of a review of a non-final order. The court reverses the judgment because the trial court lacked jurisdiction.

5 citation events (5 in the last 25 years) across 1 distinct court.
Strongest positive: Gibson v. Progress Bank of Florida, 54 So. 3d 1058 (Fla. 2d DCA 2011)
How cited ↗
Cited for
At page 566 Reversing final summary judgment during interlocutory appeal4 citing casesThe final summary judgment is a nullity because the trial court entered it during the pendency of the Sell ers’ interlocutory appeal of an order denying their motion to dissolve the Buyers’ lis pendens. See Fla. R.P. 9.130(f)2 citing courts put it this way
  • Gibson v. Progress Bank of Florida, 54 So. 3d 1058 (Fla. 2d DCA 2011).published
    (The final summary judgment is a nullity because the trial court entered it during the pendency of the Sell ers’ interlocutory appeal of an order denying their motion to dissolve the Buyers’ lis pendens. See Fla. R.P. 9…)
  • Miami-Dade Cnty. v. Louise Davis, 394 So. 3d 226 (Fla. 3d DCA 2024).published
    See Bemben v. Chock, 938 So. 2d 565, 566 (Fla. 2d DCA 2006). 2 Orders quashed. 3
  • Mckenna v. Camino Real Vill. Ass'n, 8 So. 3d 1172 (Fla. 4th DCA 2009).published
    See Bemben v. Chock, 938 So.2d 565, 566 (Fla. 2d DCA2006). 3 The procedural quagmire in which this appeal has landed requires some untangling.
  • Robinson v. Robinson, 998 So. 2d 1171 (Fla. 2d DCA 2008).published
    (reversing final summary judgment entered during pendency of interlocutory appeal)
Retrieving the full opinion text from the archive…
John F. Bemben and Dorothy Fine, Appellants,
v.
Gregory M. Chock and Judith K. Chock, Jeanne McGill, Cynthia Lee, and Marco Island Real Estate, Appellees.
Case No. 2D05-5889.
District Court of Appeal of Florida, Second District.
Sep 6, 2006.
Published opinion
938 So. 2d 565
2006 WL 2547769
Whatley.
Cited by 4 opinions  |  Published

Brian S. Dervishi of Weissman, Dervishi, Borgo & Nordlund, P.A., Miami, for Appellants.

Jana Jay Malen of Stephen R. Ostrow, P.A., Marco Island, for Appellees.

WHATLEY, Judge.

John F. Bemben and Dorothy Fine (the Sellers) appeal the final summary judgment entered in favor of Gregory M. Chock and Judith K. Chock (the Buyers) in the Buyers' action against them for specific performance of a sales contract for a vacant lot. We reverse because the trial court lacked jurisdiction to enter the judgment.[1]

The final summary judgment is a nullity because the trial court entered it during the pendency of the Sellers' interlocutory appeal of an order denying their motion to dissolve the Buyers' lis pendens. See Fla. R. App. P. 9.130(f) ("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."); Brewer v. Solovsky, 899 So. 2d 497 (Fla. 4th DCA 2005); Katz v. NME Hosps., Inc., 791 So. 2d 1127, 1128 (Fla. 4th DCA 2000) (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); Imperatore v. NationsBank of Fla., N.A., 677 So. 2d 933 (Fla. 4th DCA 1996).

We quash the final summary judgment and remand for further proceedings.

Reversed and remanded.

FULMER and WALLACE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

1 Because the trial court lacked jurisdiction to enter a final order, we are unable to address the merits of the issues raised in this appeal. However, we note that based on the briefing, it appears that the parties recognize that the trial court misstated the amount of the purchase price in the final summary judgment and may have erred in dismissing the counter-petition with prejudice.