# Third District Court of Appeal

State of Florida

Opinion filed December 19, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D18-100

Lower Tribunal No. 13-27684

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### 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”), motionto 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

2Of 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

3Judgment, 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

4Florida 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.

5912 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 reenter 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.

6on 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.

7