Third District Court of Appeal State of Florida
Opinion filed December 19, 2018. Not final until disposition of timely filed motion for rehearing. ________________
No. 3D18-100 Lower Tribunal No. 13-27684 ________________
Giuliana Llanso, Appellant,
vs.
Jose Gomez de Cordova, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge.
Law Offices of Paul Morris, P.A., and Paul Morris, for appellant.
Marks & West, and Carolyn W. West; Valdespino & Associates, P.A., and Jacqueline M. Valdespino, for appellee.
Before LAGOA, SCALES, and LINDSEY, JJ.
LAGOA, J.
Giuliana Llanso, the former wife (“Llanso”), appeals from the trial court’s
order granting Jose Gomez de Cordova’s, the former husband (“Cordova”), motion to strike/dismiss Llanso’s motion to vacate the final judgment of dissolution of
marriage (the “Final Judgment”) as void. On appeal, Llanso argues that the Final
Judgment, as well as orders entered subsequent to the Final Judgment, are void
under Florida Rule of Civil Procedure 1.540(b)(4), as the Final Judgment was
entered while an interlocutory appeal in the case was pending before this Court.
We reverse the entry of Final Judgment and subsequent orders entered by the trial
court, as the trial court lacked jurisdiction to render a final order disposing of the
case while an appeal was pending before this Court.
I. STANDARD OF REVIEW
Generally, the standard of review for a trial court’s ruling on a party’s
motion for relief from judgment made pursuant to Florida Rule of Civil Procedure
1.540(b) is an abuse of discretion. Nationstar Mortg., LLC v. Diaz, 227 So. 3d
726, 729 (Fla. 3d DCA 2017). “However, ‘[a] decision whether or not to vacate a
void judgment is not within the ambit of a trial court’s discretion; if a judgment
previously entered is void, the trial court must vacate the judgment.’” Id.
(alteration in original) (quoting Wiggins v. Tigrent, Inc., 147 So. 3d 76, 81 (Fla. 2d
DCA 2014)). Therefore, we review de novo a trial court’s ruling on whether a
judgment is void. Id.
II. FACTUAL AND PROCEDURAL BACKGROUND
2 Of significance to this appeal, on August 14, 2015, Llanso appealed both the
trial court’s order denying her Motion for Interim Partial Distribution of Marital
Assets, or in the Lesser Alternative for Temporary Attorney’s Fees, Suit Money,
and Costs, and the trial court’s order granting Cordova’s Motion to Compel Sale of
Real Property. On November 13, 2015, while this interlocutory appeal was still
pending before this Court in case number 3D15-1894, the parties announced to the
trial court that they had reached a marital settlement agreement and read into the
record the detailed terms of that agreement. The parties further addressed the
appeal in case number 3D15-1894 before this Court, specifically advising the trial
court that:
[CORDOVA’S COUNSEL]: . . . There is currently a pending appeal which will be -- I will advise the 3rd DCA. My brief is due on the 16th. I will advise the 3rd DCA that the parties have reached a settlement. Therefore, the appeal that is taken will now be moot. .... [LLANSO’S COUNSEL]: It was a -- formally, we advise them it was settled. Therefore, it is moot.
On December 4, 2015, the trial court entered the Final Judgment, which
incorporated and attached the November 13, 2015, marital settlement agreement.
The parties, however, did not notify this Court prior to the trial court’s entry of the
final judgment on December 4, 2015, that the appeal was moot and should be
dismissed. Instead, on December 9, 2015, five days after the entry of Final
3 Judgment, Llanso filed a notice of voluntary dismissal of the interlocutory appeal,
which this Court granted on the same date.
Subsequent to the entry of the Final Judgment, Llanso performed pursuant to
the terms of the marital settlement agreement by selling the former marital home.
The marital settlement agreement also provided that each party was responsible for
his or her own attorney’s fees and accountant fees. In addition, the trial court
entered several subsequent orders stemming from the marital settlement agreement
and the Final Judgment that involved liens against Llanso by two law firms
formerly representing Llanso and Llanso’s former financial accounting firm. On
November 20, 2017, Llanso moved to vacate the Final Judgment pursuant to
Florida Rule of Civil Procedure 1.540(b)(4), contending that the Final Judgment
was void and a nullity because, pursuant to Florida Rule of Appellate Procedure
9.130(f), the trial court lacked subject matter jurisdiction to enter the Final
Judgment during the pendency of a non-final appeal. Llanso further contended that
any orders entered after the entry of the Final Judgment were void as well and had
no legal force or effect. Cordova moved to strike/dismiss the motion to vacate and
following a hearing, the trial court granted Cordova’s motion. This timely appeal
ensued.
III. ANALYSIS
4 Florida Rule of Appellate Procedure 9.130(f)1 prohibits a trial court “from
entering an order disposing of a case during the pendency of an interlocutory
appeal.” Publix Supermarkets, Inc. v. Conte, 169 So. 3d 1265, 1266 (Fla. 4th DCA
2015. Indeed, “an order entered without jurisdiction is a nullity, and cannot be
considered harmless error.” Dragomirecky v. Town of Ponce Inlet, 891 So. 2d
633, 634 (Fla. 5th DCA 2005); see also Napoleonic Soc. of Am., Inc. v. Snibbe,
696 So. 2d 1243, 1243 (Fla. 2d DCA 1997) (finding that final judgment entered
during pendency of appellate review of a non-final order was a nullity); Capetta v.
Fields, 683 So. 2d 543, 544 (Fla 3d DCA 1996). Because the trial court entered a
final judgment disposing of this case before this Court dismissed the interlocutory
appeal, the trial court lacked jurisdiction to enter the Final Judgment and the
subsequent orders stemming from the Final Judgment, and reversal is warranted.
We are, however, sympathetic to the trial court’s frustration with trial
counsel. “When a pending appeal becomes moot by reason of a settlement, rule
9.350(a) requires counsel to notify the appellate court immediately by filing a
signed stipulation for dismissal of the appeal.” Merkle v. Guardianship of Jacoby,
1 Rule 9.130(f) provides:
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, except that the lower tribunal may not render a final order disposing of the cause pending such review absent leave of the court.
5 912 So. 2d 595, 600 (Fla. 2d DCA 2005). There is no explanation in the record as
to why neither counsel for Llanso nor for Cordova immediately notified this Court
of the settlement. The record is also devoid of any explanation as to why neither
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Third District Court of Appeal State of Florida
Opinion filed December 19, 2018. Not final until disposition of timely filed motion for rehearing. ________________
No. 3D18-100 Lower Tribunal No. 13-27684 ________________
Giuliana Llanso, Appellant,
vs.
Jose Gomez de Cordova, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge.
Law Offices of Paul Morris, P.A., and Paul Morris, for appellant.
Marks & West, and Carolyn W. West; Valdespino & Associates, P.A., and Jacqueline M. Valdespino, for appellee.
Before LAGOA, SCALES, and LINDSEY, JJ.
LAGOA, J.
Giuliana Llanso, the former wife (“Llanso”), appeals from the trial court’s
order granting Jose Gomez de Cordova’s, the former husband (“Cordova”), motion to strike/dismiss Llanso’s motion to vacate the final judgment of dissolution of
marriage (the “Final Judgment”) as void. On appeal, Llanso argues that the Final
Judgment, as well as orders entered subsequent to the Final Judgment, are void
under Florida Rule of Civil Procedure 1.540(b)(4), as the Final Judgment was
entered while an interlocutory appeal in the case was pending before this Court.
We reverse the entry of Final Judgment and subsequent orders entered by the trial
court, as the trial court lacked jurisdiction to render a final order disposing of the
case while an appeal was pending before this Court.
I. STANDARD OF REVIEW
Generally, the standard of review for a trial court’s ruling on a party’s
motion for relief from judgment made pursuant to Florida Rule of Civil Procedure
1.540(b) is an abuse of discretion. Nationstar Mortg., LLC v. Diaz, 227 So. 3d
726, 729 (Fla. 3d DCA 2017). “However, ‘[a] decision whether or not to vacate a
void judgment is not within the ambit of a trial court’s discretion; if a judgment
previously entered is void, the trial court must vacate the judgment.’” Id.
(alteration in original) (quoting Wiggins v. Tigrent, Inc., 147 So. 3d 76, 81 (Fla. 2d
DCA 2014)). Therefore, we review de novo a trial court’s ruling on whether a
judgment is void. Id.
II. FACTUAL AND PROCEDURAL BACKGROUND
2 Of significance to this appeal, on August 14, 2015, Llanso appealed both the
trial court’s order denying her Motion for Interim Partial Distribution of Marital
Assets, or in the Lesser Alternative for Temporary Attorney’s Fees, Suit Money,
and Costs, and the trial court’s order granting Cordova’s Motion to Compel Sale of
Real Property. On November 13, 2015, while this interlocutory appeal was still
pending before this Court in case number 3D15-1894, the parties announced to the
trial court that they had reached a marital settlement agreement and read into the
record the detailed terms of that agreement. The parties further addressed the
appeal in case number 3D15-1894 before this Court, specifically advising the trial
court that:
[CORDOVA’S COUNSEL]: . . . There is currently a pending appeal which will be -- I will advise the 3rd DCA. My brief is due on the 16th. I will advise the 3rd DCA that the parties have reached a settlement. Therefore, the appeal that is taken will now be moot. .... [LLANSO’S COUNSEL]: It was a -- formally, we advise them it was settled. Therefore, it is moot.
On December 4, 2015, the trial court entered the Final Judgment, which
incorporated and attached the November 13, 2015, marital settlement agreement.
The parties, however, did not notify this Court prior to the trial court’s entry of the
final judgment on December 4, 2015, that the appeal was moot and should be
dismissed. Instead, on December 9, 2015, five days after the entry of Final
3 Judgment, Llanso filed a notice of voluntary dismissal of the interlocutory appeal,
which this Court granted on the same date.
Subsequent to the entry of the Final Judgment, Llanso performed pursuant to
the terms of the marital settlement agreement by selling the former marital home.
The marital settlement agreement also provided that each party was responsible for
his or her own attorney’s fees and accountant fees. In addition, the trial court
entered several subsequent orders stemming from the marital settlement agreement
and the Final Judgment that involved liens against Llanso by two law firms
formerly representing Llanso and Llanso’s former financial accounting firm. On
November 20, 2017, Llanso moved to vacate the Final Judgment pursuant to
Florida Rule of Civil Procedure 1.540(b)(4), contending that the Final Judgment
was void and a nullity because, pursuant to Florida Rule of Appellate Procedure
9.130(f), the trial court lacked subject matter jurisdiction to enter the Final
Judgment during the pendency of a non-final appeal. Llanso further contended that
any orders entered after the entry of the Final Judgment were void as well and had
no legal force or effect. Cordova moved to strike/dismiss the motion to vacate and
following a hearing, the trial court granted Cordova’s motion. This timely appeal
ensued.
III. ANALYSIS
4 Florida Rule of Appellate Procedure 9.130(f)1 prohibits a trial court “from
entering an order disposing of a case during the pendency of an interlocutory
appeal.” Publix Supermarkets, Inc. v. Conte, 169 So. 3d 1265, 1266 (Fla. 4th DCA
2015. Indeed, “an order entered without jurisdiction is a nullity, and cannot be
considered harmless error.” Dragomirecky v. Town of Ponce Inlet, 891 So. 2d
633, 634 (Fla. 5th DCA 2005); see also Napoleonic Soc. of Am., Inc. v. Snibbe,
696 So. 2d 1243, 1243 (Fla. 2d DCA 1997) (finding that final judgment entered
during pendency of appellate review of a non-final order was a nullity); Capetta v.
Fields, 683 So. 2d 543, 544 (Fla 3d DCA 1996). Because the trial court entered a
final judgment disposing of this case before this Court dismissed the interlocutory
appeal, the trial court lacked jurisdiction to enter the Final Judgment and the
subsequent orders stemming from the Final Judgment, and reversal is warranted.
We are, however, sympathetic to the trial court’s frustration with trial
counsel. “When a pending appeal becomes moot by reason of a settlement, rule
9.350(a) requires counsel to notify the appellate court immediately by filing a
signed stipulation for dismissal of the appeal.” Merkle v. Guardianship of Jacoby,
1 Rule 9.130(f) provides:
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, except that the lower tribunal may not render a final order disposing of the cause pending such review absent leave of the court.
5 912 So. 2d 595, 600 (Fla. 2d DCA 2005). There is no explanation in the record as
to why neither counsel for Llanso nor for Cordova immediately notified this Court
of the settlement. The record is also devoid of any explanation as to why neither
counsel advised the trial court that the appeal had not yet been dismissed prior to
the entry of final judgment.
As our sister court has explained:
This may all sound like legal gobbledegook to some since, upon remand, the trial court can be expected to re- enter a similar final judgment. We concede that may be true, but jurisdiction is not a question a court can take or leave, and a judgment entered without jurisdiction is void.
Garcia-Lawson v. Lawson, 82 So. 3d 137, 137 (Fla. 4th DCA 2012) (quoting
Esposito v. Horning, 416 So. 2d 896, 898 (Fla 4th DCA 1982)).2
Accordingly, we reverse the Final Judgment and subsequent orders and
remand for further proceedings. Our reversal, however, is without prejudice to the
trial court’s re-entry of a similar final judgment and subsequent orders as the
interlocutory appeal has been dismissed. See Connor Realty, Inc. v. Ocean Terrace
N. Condo. Ass’n, 572 So. 2d 4, 4 (Fla. 4th DCA 1990) (reversing the trial court
for entering final judgment while an appeal from a non-final order was pending
and remanding for further proceedings including reinstatement of final judgment
2 Indeed, at oral argument, counsel for Llanso conceded that nothing would prevent the trial court from re-entering a similar final judgment.
6 on a date subsequent to dismissal of appeal); Hirschhorn v. Superior Realty of Fla.,
Inc., 450 So. 2d 510, 511 (Fla. 4th DCA 1984) (same).
Reversed and remanded for further proceedings.