ROBERT J. PURCELL, D/B/A NEW DELI MAN, APPELLANT,
v.
DELI MAN, INC., A FLORIDA CORPORATION, AND GERALD POMERANTZ, APPELLEES
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This case addresses whether a trial court can entertain a second Rule 1.540(b) motion to set aside a default judgment when the grounds could have been raised in an earlier motion filed nearly two years prior. The appellate court reversed the trial court's grant of the second motion, holding that entertaining it constituted fundamental error.
The trial court committed fundamental error in entertaining the second Rule 1.540(b) motion to set aside the judgment when the grounds raised therein could have been raised in the first motion filed almost two years earlier. Grounds that could have been raised in an earlier motion cannot support a later motion.
[1] A second motion to set aside or vacate a judgment under Rule 1.540(b) is properly denied when the grounds asserted in the second motion could have been raised in a prior…
[2] A circuit court commits fundamental error in entertaining a second Rule 1.540(b) motion to set aside or vacate when the grounds could have been raised in a prior motion.
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Join FLexlaw to unlock all legal intelligence“the circuit court committed fundamental error in entertaining a second Rule 1.540(b) motion to set aside or vacate when the grounds in that second motion could have been raised in the first Rule 1.540(b) motion filed almost two years before the second motion”
This establishes the core holding that courts cannot entertain successive Rule 1.540(b) motions raising grounds that could have been raised earlier.
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Join FLexlaw to unlock all legal intelligenceRobert Purcell filed a complaint against Deli Man, Inc. and Gerald Pomerantz on March 9, 1977. Pomerantz was served in Massachusetts. A default was en…
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DOWNEY, Judge.
Robert J. Purcell on March 9,1977, filed a two count (one for specific performance, the other for money damages) complaint against Deli Man, Inc., and Gerald Pomer-antz. Purcell had Pomerantz served in Massachusetts pursuant to Section 48.193, Florida Statutes (1977). On May 26,1978, a default was entered against Pomerantz, and on June 9, 1978, a final money judgment was entered in favor of Purcell.
On May 15, 1979, pursuant to Florida Rule of Civil Procedure 1.540(b), Pomerantz filed a motion to set aside the June 9, 1978, judgment. As grounds for his motion Pom-erantz asserted mistake and excusable neglect. As support for his motion Pomer-antz, on May 17,1979, served an affidavit in which he swore, among other things, that his being served with a summons and complaint in Purcell’s action “came as a shock inasmuch as I had nothing to do with Deli Man, Inc., and had merely loaned monies to my friend ... to enable him to purchase the business.” On May 25, 1979, Pomerantz signed a supplemental affidavit in support of his May 15th motion. In that supplemental affidavit Purcell swore, among other things, that he “did not do business with Robert Purcell” and that he “did not transact any business in Florida at any time material to this cause.” On May 31, 1979, the circuit court (Rodgers, J.) rendered an order denying the May 15, 1979, motion to set aside the final judgment of June 9,1978. Pomerantz did not seek rehearing of the order of denial or appeal from it.
On March 3, 1981, Pomerantz filed another motion, pursuant to Rule 1.540(b), to set aside the final judgment of June 9, 1978. No copy of that motion has been included in the record before us. However, we infer from the order granting the motion that Pomerantz asserted the June, 1978, judgment was void because the circuit court had not obtained personal jurisdiction since Purcell’s complaint “failed to allege sufficient facts to establish personal jurisdiction over [Pomerantz] pursuant to Florida Statute § 48.181 or § 48.193. ...”
Purcell, on authority of Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), ap peals from the March 25, 1981, order of the circuit court (Douglas, J.) granting Pomer-antz’s motion to set aside the final judgment of June, 1978, on the ground quoted above. We reverse upon a holding that the circuit court committed fundamental error in entertaining a second Rule 1.540(b) motion to set aside or vacate when the grounds in that second motion could have been raised in the first Rule 1.540(b) motion filed almost two years before the second motion. The error is fundamental because it goes to the heart of the present case.
Had the circuit court denied the second motion to vacate, its action would have been affirmed because the grounds raised in the second motion were raised or could have been raised in the first motion. Perkins v. Salem, 249 So. 2d 466 (Fla. 1st DCA 1971), approved in Carner Bank of Miami Beach v. R. G. Wolff & Company, Inc., 329 So. 2d 298 (Fla.1976); cf. Malicoat v. La Chappelle, 390 So. 2d 481 (Fla. 4th DCA 1980).
Accordingly, we reverse the order granting Pomerantz’s March, 1981, motion to set aside or vacate and remand the cause with directions that the circuit court enter an order denying the motion.
REVERSED AND REMANDED, with directions.
BERANEK and HERSEY, JJ., concur.
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Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305 (Fla. 3d DCA 1987)…cedure 1.540, which attempts to relitigate matters settled by a prior order denying relief. Perkins v. Salem, 249 So. 2d 466 (Fla. 1st DCA 1971); [*1307] Atlas v. City of Pembroke Pines, 441 So. 2d 652 (Fla. 4th DCA 1983); Purcell v. Deli Man, Inc., 411 So. 2d 378 (Fla. 4th DCA 1982); Malicoat v. LaChappelle, 390 So. 2d 481 (Fla. 4th DCA 1980). If a party is dissatisfied with a court’s ruling, the correct remedy is an appeal, not the filing of successive motions to vacate containing the same general grounds o…1 / 2
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Intercoastal Marina Towers, Inc. v. Suburban Bank, Robert G. Curie, AIA, P.A., 506 So. 2d 1177 (Fla. 4th DCA 1987)…If dissatisfied with the court’s ruling thereon their remedy was by appeal, not be filing successive motions to vacate containing the same general grounds or even new ones, which could have been raised in the first motion. Purcell v. Deli Man, Inc., 411 So. 2d 378 (Fla. 4th DCA 1982); Perkins v. Salem, 249 So. 2d 466 (Fla. 1st DCA 1971). Finally, appellants contend that the trial court erred in entering its orders taxing attorney’s fees against appellants because the trial court was without jurisdiction in t…
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Bank OF Am., N.A. v. Lane, 76 So. 3d 1007 (Fla. 1st DCA 2011)…based on a lack of personal jurisdiction, appellees claim they could establish excusable neglect, a meritorious defense, and due diligence on remand. Appellant responds this would be improper and fundamental error, citing Purcell v. Deli Man, Inc., 411 So. 2d 378 (Fla. 4th DCA 1982), which held the trial court committed fundamental error in entertaining a second rule 1.540(b) motion to set aside a default judgment when the grounds in the second [*1010] motion could have been raised in the first motion, which…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Perkins v. Zack A. Salem, 249 So. 2d 466 (Fla. 1st DCA 1971)
- In the Interest of C. E. M., 390 So. 2d 481 (Fla. 4th DCA 1980)
- Carner Bank OF Miami Beach v. R. G. Wolff & Co., Inc., 329 So. 2d 298 (Fla. 1976)
- Ercoli v. State, 329 So. 2d 298 (Fla. 1976)