MML Dev. Corp. v. EAGLE NATL. BANK , 597 So. 2d 968 ( 1992 )

597 So. 2d 968 (1992)

MML DEVELOPMENT CORP, etc., et al., Appellant.
v.
EAGLE NATIONAL BANK OF MIAMI, etc., Appellee.

No. 91-2567.

District Court of Appeal of Florida, Fifth District.

May 8, 1992.

Thorwald J. Husfeld, of Landis, Graham, French, Husfeld, Sherman & Ford, P.A., DeLand, for appellants.

I. Barry Blaxberg, and Moises T. Grayson, of Blaxberg, Grayson & Singer, Miami, and Cobb, Cole & Bell, P.A., Daytona Beach, for appellee.

ON MOTION TO DISMISS

W. SHARP, Judge.

Appellee's motion to dismiss this appeal is granted. Appellants are attempting to appeal from a "final summary judgment" entered after a non-final appeal involving venue had been perfected. The "final" order was final in all regards except for the last paragraph which provides it will not become final "pending review" of the venue non-final appeal.

This is an attempt to end-run around the provisions of Florida Rule of Appellate Procedure 9.130(f) which 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; provided that the lower tribunal may not render a final order disposing of the cause pending such review. (emphasis supplied)

Under the rule, the trial court lacked jurisdiction to enter such a final order pending the final disposition of the non-final appeal. See Connor Realty, Inc. v. Ocean Terrace North Condominium Ass'n., 572 So. 2d 4 (Fla. 4th DCA 1990); Esposito v. Horning, 416 So. 2d 896 (Fla. 4th DCA 1982). We therefore vacate the order sought to be appealed in this case and dismiss this appeal. See, e.g., Sammons v. Sammons, 479 So. 2d 223 (Fla. 3d DCA 1985).

SUMMARY JUDGMENT VACATED; APPEAL DISMISSED.

GRIFFIN and DIAMANTIS, JJ., concur.