Law Clerk
In McBride v. Keller, 51 Fla. L. Weekly D280a (Fla. 5th DCA Feb. 13, 2026), the Fifth District vacated a county court order dismissing a complaint with prejudice because the trial court entered the final dismissal while an interlocutory appeal was still pending, even though the appellate court had dismissed the appeal earlier the same day.
During the litigation, the plaintiff took an interlocutory appeal from a nonfinal order. While that interlocutory appeal was pending, the defendants moved to dismiss the complaint with prejudice in the trial court. The plaintiff then moved to dismiss his appeal. The Fifth District entered an order dismissing the appeal on May 7, 2025. The trial court entered its final dismissal with prejudice that same day.
Florida Rule of Appellate Procedure 9.130(f) allows the trial court to continue handling most matters during the pendency of a nonfinal appeal, with an important limit:
“[I]n the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters … provided that the lower tribunal may not render a final order disposing of the cause pending such review.” Fla. R. App. P. 9.130(f).
So the trial court may generally proceed, but it may not dispose of the case while the interlocutory appeal remains pending.
The Fifth District emphasized that full jurisdiction does not return to the trial court until the mandate issues. Florida Rule of Appellate Procedure 9.340(a) provides that, unless otherwise ordered, the clerk issues the mandate after 15 days from the date of an order or decision. Fla. R. App. P. 9.340(a).
Because the mandate had not issued, the interlocutory appeal was still “pending” for jurisdictional purposes, and the trial court lacked jurisdiction to enter a final dismissal with prejudice.
As the court noted, “‘an order entered without jurisdiction is a nullity, and cannot be considered harmless error.’” Llanso v. Gomez de Cordova, 263 So. 3d 137, 140 (Fla. 3d DCA 2018) (quoting Dragomirecky v. Town of Ponce Inlet, 891 So. 2d 633 (Fla. 5th DCA 2005)).
The Fifth District therefore vacated the dismissal order and remanded. Importantly, the court also explained the practical impact: on remand, the trial court was authorized to re-enter a dismissal order now that the interlocutory appeal had been disposed of with finality.
McBride is a clean reminder that, in Florida, procedural timing rules matter. Even if the appellate court dismisses the interlocutory appeal, trial court jurisdiction is not fully restored until the mandate issues. Fla. R. App. P. 9.340(a).
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