pendency of appeal from final judgment removed trial court’s jurisdiction to grant motion to vacate a judgment
How later courts described this case
- pendency of appeal from final judgment removed trial court’s jurisdiction to grant motion to vacate a judgment
Written by the judges who cited it.
The opinion
HERSEY, Chief Judge.
While an appeal from a final judgment in this matter was pending, appellants filed a motion pursuant to rule 1.540(b), Florida Rules of Civil Procedure, requesting the trial court to vacate the judgment or, in the alternative, to deem it satisfied. Denial of that motion is the subject of the present appeal from a non-final order. Since the trial court was without jurisdiction to grant the motion during the pendency of an appeal, denial was appropriate. Glatstein v. City of Miami, 391 So.2d 297 (Fla. 3d DCA 1980); Leo Goodwin Foundation, Inc. v. Riggs National Bank of Washington, D.C., 374 So.2d 1018 (Fla. 4th DCA 1979). We therefore affirm, without prejudice, however, to appellants’ right to raise the issue again after the pending appeal is terminated unless precluded by law of the case, estoppel by judgment, or res judicata.
Appellee seeks attorney’s fees in these proceedings on the basis of a personal guaranty or, in the alternative, on the basis of section 57.105, Florida Statutes (1985). We deny the latter. As to the former basis we grant the motion and upon remand the trial court shall determine the amount of a reasonable attorney’s fee to be allowed for the instant appeal.
AFFIRMED.
LETTS and GUNTHER, JJ., concur.