# Third District Court of Appeal

State of Florida

Opinion filed May 18, 2016.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D15- 912

Lower Tribunal No. 07

- 9620

________________



### Richard Fonseca,

Petitioner,

vs.



### Taverna Imports, Inc., et al.,

Respondents.

A Case of Original Jurisdiction

– Prohibition.

Hicks, Porter, Ebenfeld & Stein, P.A., and Mark Hicks and Dinah Stein;

Schlesinger & Associates, P.A., and Jennifer A. Kerr, for petitioner.

Rosenthal, Rosenthal, Rasco, Kaplan, LLC, and Eduardo I. Rasco and

Joshua L. Zipper

, for respondents.

Before ROTHENBERG, LAGOA and SCALES, JJ.

SCALES, J.Petitioner Richard Fonseca seeks a writ of certiorari and/or prohibition

preventing the trial court from entering an order granting Respondents Taverna

Imports, Inc.’s (the “Corporation”) and Mario Taverna’s (“Taverna”) motion for

offset. The trial court’s prospective order will have the effect of merging four

separate judgments from two independent trial court cases. We grant Fonseca’s

petition seeking prohibition because the trial court lacks jurisdiction to modify the

adjudications, the appeals of which are currently pending in this Court.

I. Facts and Procedural Background

A. The Taverna and Corporation Action

In 2007, Taverna and the Corporation filed suit

– in lower court number 07-

9620

– against four defendants, including Fonseca and his wife Marisela Fonseca,

after a dispute arose as to whether Taverna had been duly removed as president of

the Corporation.

On April 1, 2010, the trial court granted Taverna partial summary judgment,

finding that Taverna was wrongfully ousted as president of the Corporation. On

September 12, 2014, a jury awarded damages against the defendants, as follows:

$1,063,234.00 in favor of the Corporation, and $833,000.00 in favor of Taverna.

This jury award was reduced to two judgments against Fonseca.

2On February 13, 2015, Fonseca, together with his wife Marisela Fonseca,

appealed these judgments to this Court. This appeal is currently pending in case

number 3D15-382.

B. The Bank of America Action

Also in 2007, Bank of America filed a separate action

– in lower court

number 07-43714

– against the Corporation, Taverna, and Marisela Fonseca to

recover on a line of credit that went into default. The Bank of America line of

credit had a principal balance of $95,243.46, and was personally guaranteed by

Taverna and Marisela Fonseca.

In 2008, Bank of America obtained a default judgment against the

Corporation in the amount of $110,309.36. In 2012, in the same action, Bank of

America also obtained a judgment against Taverna in the amount of $180,907.92. 1

These two judgments were never satisfied.

On June 14, 2014, Fonseca purchased the two Bank of America judgments

(one against the Corporation and one against Taverna) and became the judgment

creditor on these two judgments. Shortly after Fonseca acquired these judgments

–

on September 23, 2014

– the Corporation filed a motion for relief from the 2008

and 2012 Bank of America judgments pursuant to rule 1.540(b) of the Florida

Rules of Civil Procedure. In its motion, the Corporation argued that the newly

1 Bank of America did not obtain a judgment against Marisela Fonseca.

3entered judgments against Fonseca in the Taverna and Corporation Action

– lower

court number 07-9620

– made it inequitable to allow collection on the Bank of

America judgments now assigned to Fonseca.

On October 16, 2014, the trial court denied the Corporation’s motion for

relief from the judgments. That same day, the Corporation filed in this Court an

appeal of the order denying its 1.540(b) motion (case number 3D14-2506). On

May 27, 2015, this Court consolidated the appeals in case numbers 3D14-2506 and

3D15-382.

C. The Net Result of the Two Actions

The net result of the two actions is summarized below:

 07-9620

– The Corporation and Taverna were awarded two judgments

against Fonseca totaling $1,896,236.00.

 07-43714

– Fonseca owned two judgments against the Corporation

and Taverna totaling $221,217.28.

D. The Proposed Offset Order

On September 23, 2014, in lower court number 07-9620, the Corporation

filed a motion

– in which Taverna joined

– requesting an offset of the four

judgments entered in the two above-referenced lower court cases. This motion

sought somewhat similar relief to the rule 1.540(b) motion the Corporation had

filed the same day

– and that was ultimately denied

– in the Bank of America

4Action (lower court number 07-43714). In their motion, the Corporation and

Taverna sought for the trial court to invoke its equity jurisdiction, and both (i)

cancel the judgments against them, in lower court number 07-43714, which

Fonseca had acquired from Bank of America, and (ii) reduce the amounts Fonseca

owed the Corporation and Taverna by virtue of the judgments entered in lower

court number 07-9620.

Despite the pendency in this Court of the appeals of the two judgments

entered in lower court number 07-9620, and the appeal of the rule 1.540(b) denial

in lower court number 07-43714, the trial court heard the motion on March 12,

2015. At the hearing, the trial court informed the parties of its intent to grant the

motion and enter an order that both cancelled the judgments in lower court case

07-43714 and amended the judgments in lower court case 07-9620 to subtract the

amount awarded in the cancelled judgments (the “Proposed Offset Order”). 2

As a result of the trial court’s imminent intention to enter the Proposed

Offset Order, Fonseca petitioned this Court for certiorari and prohibition relief.

II. Analysis

It is well settled that, except in circumstances not applicable here, a trial

court is divested of jurisdiction upon the filing of a notice of appeal. Palma Sola

Harbour Condo., Inc. v. Huber

, 374 So. 2d 1135, 1138 (Fla. 2d DCA 1979).

2 The trial court entered a handwritten order indicating that the trial court will enter

the Proposed Offset Order nunc pro tunc to the date of the March 12th hearing.

5Accordingly, a trial court is without jurisdiction to modify a judgment, while that

judgment is pending on appeal, in the absence of the appellate court relinquishing

jurisdiction to the trial court for that purpose. See Glatstein v. City of Miami

, 391

So. 2d 297 (Fla. 3d DCA 1980).

While the Corporation and Taverna’s motion to offset was filed before the

appeal notices were filed in the two lower court cases, the trial court was divested

of jurisdiction over the cases prior to its conducting the March 12, 2015 hearing on

the motion.

There is no doubt that the Proposed Offset Order, if entered, would modify

the two judgments and the order on appeal to this Court. The Proposed Offset

Order would not only create two new amended judgments, but would also

satisfy/cancel the other two judgments. The Proposed Offset Order would also

effectively grant the rule 1.540(b) order, the denial of which is on appeal to this

Court.

Because the Proposed Offset Order would modify the very adjudications

that are currently on appeal to this Court, consolidated in case number 3D15-382,

the trial court lacks jurisdiction to enter the Proposed Offset Order.

Indeed, if the trial court were to enter the Proposed Offset Order, both the

jurisdiction of this Court, and the rights of the parties to the judgments and order

6on appeal, would be frustrated. See Liberman v. Rhyne

, 248 So. 2d 242, 244 (Fla.

3d DCA 1971).

Prohibition is appropriate to prevent a trial court from proceeding in a matter

in which the trial court no longer has jurisdiction. English v. McCrary

, 348 So. 2d

293, 296-97 (Fla. 1977); see also Durham v. Butler

, 89 So. 3d 1023, 1025 (Fla. 3d

DCA 2012); City of St. Petersburg v. Cir. Ct. of the Sixth Jud. Cir.

, 422 So. 2d 18,

19 (Fla. 2d DCA 1982).

Because the trial court is without jurisdiction to modify the judgments and

order on appeal, we grant the petition for writ of prohibition and prevent the trial

court from entering the Proposed Offset Order.

Although we grant the petition seeking the writ of prohibition, we trust that

it will not be necessary to issue the writ. We deny as moot the portion of the

petition seeking certiorari relief.

Petition for prohibition granted; writ withheld.

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