ARTHUR FALKNER AND SYBLE FALKNER, HIS WIFE, APPELLANTS,
v.
AMERIFIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, PREVIOUSLY KNOWN AS FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI, A UNITED STATES CORPORATION, APPELLEE
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Plaintiffs appealed a judgment dismissing their amended complaint on res judicata grounds after they failed to timely appeal or move for rehearing following an earlier dismissal. The court affirmed the judgment but remanded for consideration of plaintiffs' claim that the earlier dismissal orders were void due to lack of notice and opportunity to be heard.
The affirmance of the March 23, 1984 judgment dismissing the amended complaint is affirmed on res judicata grounds, but the case is remanded for the trial court to consider whether the May 1983 dismissal orders were void under Florida Rule of Civil Procedure 1.540(b)(4) due to plaintiffs' lack of notice and opportunity to be heard.
[1] A dismissal of a complaint constitutes a final judgment, and the trial court lacks jurisdiction to entertain further proceedings on the matter after the time for rehearin…
[2] A motion to vacate a judgment under Fla.R.Civ.P. …
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 trial court had no choice but to enter the judgment of dismissal now before us on res judicata grounds”
Establishes that the trial court properly applied res judicata based on plaintiffs' failure to timely appeal or seek rehearing of the initial dismissal.
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Join FLexlaw to unlock all legal intelligenceThe trial court entered orders on May 5 and 9, 1983 granting defendant's motion to dismiss the plaintiffs' initial complaint. Plaintiffs did not timel…
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SCHWARTZ, Chief Judge.
The plaintiffs below appeal from a March 23, 1984 final judgment dismissing their amended complaint, filed October 23, 1983. On May 5th and 9th, 1983, the trial court had entered orders directed to the initial complaint, which provided that “[defendant's motion to dismiss is granted and [plaintiffs’ complaint is dismissed.” 1 Since the dismissal of the complaint constituted a final judgment in the cause, Gries Investment Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980), and the plaintiffs did not timely move for rehearing — seeking leave to amend or otherwise — or appeal, the trial court had no choice but to enter the judgment of dismissal now before us on res judicata grounds. See Gries Investment Co. v. Chelton; Derma Lift Salon, Inc. v. Swanko, 419 So. 2d 1180 (Fla. 3d DCA 1982).
It appears, however, that the allegations of the plaintiffs’ November 29, 1983 motion to strike, and their sworn May 7, 1984 motion to vacate, to the effect that they had not been given notice or opportunity to be heard before the entry of the May, 1983 judgments, adequately set forth a claim — which has not been ruled upon below — that the judgments are “void” and thus should be set aside pursuant to Fla.R. Civ.P. 1.540(b)(4). See Gelkop v. Gelkop, 384 So. 2d 195, 199-200 (Fla. 3d DCA 1980); Osceola Farms Co. v. Sanchez, 238 So. 2d 477, 480 (Fla. 2d DCA 1970). Accordingly, the affirmance of the judgment now under review is specifically without prejudice to appropriate disposition2 after remand of the plaintiffs’ alleged right to relief under Fla.R.Civ.P. 1.540.3 See Griffin v. Tauber-Manon Associates, Inc., 452 So. 2d 577 (Fla. 3d DCA 1984).
Affirmed, remanded.
. The order of May 5 dismissed the complaint "with prejudice;" that of May 9 did not contain these words. As Gries, infra, holds, however, the difference is irrelevant to the finality of the order. . We express no opinion as to the factual merits of or the existence of any defenses to the plaintiffs’ right to 1.540 relief.
.Of course, if the May, 1983 judgments are set aside, the March 23, 1984 judgment, which we here affirm, will then in turn necessarily itself be vacated under Rule 1.540(b)(5) (providing for vacating judgment when judgment’ it is based upon has been vacated).
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Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So. 2d 758 (Fla. 3d DCA 1986)…t in the cause and affirmed the judgment on res judicata grounds, without deciding whether the judgment could be set aside, pursuant to Florida Rule of Civil Procedure 1.540(b)(4), as void. Falkner v. Amerifirst Federal Savings and Loan Association, 467 So. 2d 746 (Fla. 3d DCA 1985). We now consider that question. A judgment entered without due service of process is void. See Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980); McAlice v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979); Grahn v. Dade Home Services…
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Hoffman v. Hall, 817 So. 2d 1057 (Fla. 1st DCA 2002)…Ins. Co. v. Open MRI of Orlando, Inc., 780 So. 2d 339 (Fla. 5th DCA 2001)(phrases “plaintiff shall take nothing by this action” and “plaintiff shall go hence without day” are not essential to finality); Falkner v. Amerifirst Fed. Sav. & Loan Ass’n, 467 So. 2d 746 (Fla. 3d DCA 1985)(order was final even though it did not include the words “with prejudice”). However, the use of such phrases does signal a final adjudication of the cause as between the parties. To be appealable as a final order, an order must…
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Oberpriller v. Dellapa, 557 So. 2d 130 (Fla. 3d DCA 1990)…affidavit or testimony, the appellant would be entitled to relief from judgment in the dissolution proceeding. See, e.g., Falkner v. AmeriFirst Fed. Sav. & Loan Ass’n, 489 So. 2d 758 (Fla. 3d DCA 1986); Falkner v. AmeriFirst Fed. Sav. & Loan Ass’n, 467 So. 2d 746 (Fla. 3d DCA 1985). Our affirmance is without prejudice to the appellant’s ability to seek relief from judgment in the matrimonial action.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)
- Dov Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980)
- Derma Lift Salon, Inc. v. Honorable Edward Swanko, 419 So. 2d 1180 (Fla. 3d DCA 1982)
- Osceola Farms Co. v. Sanchez, 238 So. 2d 477 (Fla. 4th DCA 1970)
- Griffin v. Tauber-Manon Assocs., Inc., 452 So. 2d 577 (Fla. 3d DCA 1984)