MARIA BARRIOS, APPELLANT,
v.
JAMES DRAPER AND INDUSTRIAL FIRE & CASUALTY COMPANY, APPELLEES
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A party seeking relief from judgment based on a mistake of law must file a motion within ten days or an appeal within thirty days.
Plaintiff obtained a judgment based on a finding of no permanent injury, relying on a then-current appellate decision. The Supreme Court later reverse…
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NESBITT, Judge.
This is an appeal from an order granting the defendants’ motion for relief from a final judgment. We reverse.
Based upon the fifth district’s decision, in Dillon v. Chapman, 404 So. 2d 354 (Fla. 5th DCA 1981), holding that the permanent injury requirement of the no fault statute was unconstitutional, the plaintiff recovered a judgment upon a special interrogatory verdict which found no permanent injury. No appeal was filed by the defendant. Thirty-six days after entry of the final judgment, the supreme court reversed the fifth district’s decision. See Chapman v. Dillon, 415 So. 2d 12 (Fla.1982). Four days later, the defendant filed his motion for relief from final judgment.
A party seeking relief from judgment based on a mistake of law has two alternatives. He may file a motion pursuant to Florida Rule of Civil Procedure 1.530(g) within ten days after entry of the final judgment or file an appeal within thirty days. See Fiber Crete Homes, Inc. v. Division of Administration, Department of Transportation, 315 So. 2d 492 (Fla. 4th DCA 1975); Keller v. Belcher, 256 So. 2d 561 (Fla. 3d DCA 1971), cert. denied, 280 So. 2d 682 (Fla.1972). Having failed to avail themselves of either of these alternatives, the defendants are precluded from relief.
Accordingly, we reverse the order vacating the judgment with directions to reinstate the final judgment in favor of the plaintiff.
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Phenion Dev. Grp., Inc. v. Love, 940 So. 2d 1179 (Fla. 5th DCA 2006)…em to suggest, the mistake still appears to have been a mistake of law, which Appellants could have corrected by timely filing a motion for rehearing (bringing the overlooked but controlling case law to the court’s attention). See Barrios v. Draper, 423 So. 2d 1002, 1003 (Fla. 3d DCA 1982) (noting “a party seeking relief from judgment based on a mistake of law has two alternatives. He may file a motion pursuant to Florida Rule of Civil Procedure 1.530(g) within ten days after entry of the final judgment or fil…
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Herskowitz v. Herskowitz, 513 So. 2d 1318 (Fla. 3d DCA 1987)…ed or no such motion is filed and the ten days for filing same has expired — the trial court loses jurisdiction to rehear the judgment on the merits. Shelby Mutual Ins. Co. of Shelby, Ohio v. Pearson, 236 So. 2d 1, 3-4 (Fla.1970); Barrios v. Draper, 423 So. 2d 1002, 1003 (Fla. 3d DCA 1982); Pompano Atlantis Condominium Ass’n v. Merlino, 415 So. 2d 153, 154 (Fla. 4th DCA 1982); see McKibbin v. Fujarek, 385 So. 2d 724, 725 (Fla. 4th DCA 1980). Finally, the trial court, sua sponte, vacated the final judgment her…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fiber Crete Homes, Inc. v. Division OF Administration, 315 So. 2d 492 (Fla. 4th DCA 1975)
- Chapman v. Dillon, 415 So. 2d 12 (Fla. 1982)
- Keller v. Belcher, 256 So. 2d 561 (Fla. 3d DCA 1971)
- Brayton v. State, 404 So. 2d 354 (Fla. 4th DCA 1981)
- Keller v. Belcher, 280 So. 2d 682 (Fla. 1972)
- Sims v. Tampa Unif. Serv., Inc., 280 So. 2d 682 (Fla. 1973)