LOIS FEINBERG, APPELLANT,
v.
ARTHUR I. FEINBERG, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Lois Feinberg appealed the trial court's denial of her motion to vacate a final judgment in a dissolution of marriage case, seeking relief under Rule 1.540(b) based on alleged mistake or excusable neglect by her counsel in failing to timely file a motion for new trial. The Fourth District Court of Appeal affirmed the denial, holding that the trial court properly concluded the counsel's conduct did not constitute excusable neglect.
The court affirmed the trial court's denial of the motion to vacate, holding that counsel's conduct in filing the prohibited motion to extend time was not excusable neglect and that the trial court did not err in concluding counsel's conduct lacked the requisite excuse.
[1] A motion to vacate a final judgment under Rule of Civil Procedure 1.540(b) is not available to grant a party a new opportunity to appeal when the prior appeal was dismiss…
[2] A party may be relieved of the effect of a judgment to allow the timely filing of an appeal when the party was not notified of the entry of the final judgment.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the issue was simply whether appellant's counsel demonstrated that his failure to file a timely motion for new trial was the result of his own excusable neglect”
Identifies the central legal question on appeal
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA final judgment in a dissolution of marriage was entered on November 15, 1979. Appellant's counsel filed an untimely motion for new trial along with …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Timeliness Of Post-Trial Motions cases and more on FLexlaw
PER CURIAM.
This is an interlocutory appeal from an order denying a motion to vacate a final judgment filed pursuant to Rule of Civil Procedure 1.540(b). Final judgment was entered in a dissolution of marriage proceeding on November 15,1979. An untimely motion for new trial was filed, along with an unauthorized motion to extend the time for the filing of the motion. In a prior decision, this court dismissed an appeal from the final judgment due to the untimeliness of the motion for new trial and an unauthorized order extending the time for the filing of the post-trial motion. Feinberg v. Feinberg, 384 So. 2d 1304 (Fla. 4th DCA 1980). After the appeal was dismissed, appellant/wife filed a motion pursuant to Rule of Civil Procedure 1.540(b) asserting that the failure to file a timely motion for new trial was the result of mistake, inadvertence or excusable neglect. The motion requested reissuance of the final judgment with a fresh date so that an appeal could be taken. The trial court denied the motion and the present appeal results.
This is not a situation as presented in Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980), where a party was not notified of the entry of a final judgment.1 Under such circumstances, courts have allowed a party to be relieved of the effect of the judgment to the extent of reissuing the judgment to allow the timely filing of an appeal. In Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971), similar relief was granted, but it-was carefully pointed out that the “inadvertence” upon which vacation of the final judgment was based was the rendition of the judgment without notice or knowledge of the party. In the present situation, the issue was simply whether appellant’s counsel demonstrated that his failure to file a timely motion for new trial was the result of his own excusable neglect. Resort to the prior Feinberg opinion discloses that the reason for the untimely appeal was the filing of a prohibited motion to extend the time for the filing of the motion for new trial. This was the mistake which eventually resulted in a late notice of appeal. The trial court here concluded, on the basis of conflicting facts and argument that counsel’s conduct was not the result of his own excusable neglect. We cannot fault the trial court in this conclusion and the order appealed from is thus affirmed.
AFFIRMED.
BERANEK and HERSEY, JJ., concur. ANSTEAD, J., dissents with opinion.
. We do not adopt the holding of Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980) but merely conclude it is inapplicable to the case now under consideration. We note the Gibson opinion does not comment upon the effect of Rule of Civil Procedure 1.080(h)(3).
ANSTEAD, Judge,
dissenting:
I think the appellant established sufficient grounds to entitle her to relief under the provisions of Rule of Civil Procedure 1.540(b). See County National Bank of North Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
David M. Dresdner, M.D., P.A. v. The Charter OAK Fire Ins. Co., 972 So. 2d 275 (Fla. 2d DCA 2008)…similar case, the Fourth District affirmed a trial court order that had denied relief under rule 1.540(b) where the late filing of the appellant’s notice of appeal resulted from an error committed by the appellant’s lawyer. See Feinberg v. Feinberg, 410 So. 2d 517, 518 (Fla. 4th DCA 1981). [*280] In this case, Dr. Dresdner does not contend that the trial court had the authority to extend the time for the filing of his notice of appeal. Instead, Dr. Dres-dner relies on a line of cases that he says stands for t…
-
Larkin v. Buranosky, 25 So. 3d 685 (Fla. 4th DCA 2010)…received the final judgment, she had over two weeks to file a timely notice of appeal. The mistake which eventually resulted in the late notice of appeal was the filing of an untimely motion for rehearing in the trial court. In Feinberg v. Feinberg, 410 So. 2d 517, 518 (Fla. 4th DCA 1981), we held that this very circumstance did not justify relief under rule 1.540. See also David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So. 2d 275, 281 (Fla. 2d DCA 2008) (finding that the trial court erred wh…
Authorities Cited
- Robert M. Gibson et ux. v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980)
- Cnty. Nat'l Bank OF N. Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981)
- Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971)
- Feinberg v. Feinberg, 384 So. 2d 1304 (Fla. 4th DCA 1980)