MURRAY BLATTMAN, AS TRUSTEE UNDER THAT CERTAIN TRUST AGREEMENT DATED DECEMBER 18, 1975 AND KNOWN AS TRUST NO. 75-LT-21, APPELLANT,
v.
WILLIAMS ISLAND ASSOCIATES, LTD., A FLORIDA LIMITED PARTNERSHIP AND ITS GENERAL PARTNERS BONREL REALTY CORP., A NEW YORK CORPORATION AND MUBEN REALTY COMPANY, A NEW JERSEY CORPORATION, APPELLEES; NORMAN COHEN, AS TRUSTEE, ETC., ET AL., APPELLANT, V. WILLIAMS ISLAND ASSOCIATES, LTD., ETC., ET AL., APPELLEES
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Trustees appealed from summary judgment in a dispute with Williams Island Associates over breach of contract and utility assessments. The court affirmed the summary judgment and dismissed the appeal regarding attorney's fees as untimely.
The court affirmed the denial of the motion to vacate and motion to amend, finding they were barred by res judicata. The settlement letter was an unaccepted offer of compromise and could not support the requested relief. The appeal regarding attorney's fees was dismissed as untimely, though plaintiffs could appeal the final fee order when entered.
[1] Post-judgment motions and new complaints are barred by res judicata when they seek to relitigate issues already decided or that should have been litigated in a prior acti…
[2] An unaccepted offer of compromise or settlement cannot form the basis for relief sought by a party.
Previewing 2 of 5 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“These post-judgment motions and complaint were, in our view, all barred by the doctrine of res judicata as they represent efforts to relitigate issues which were either decided adversely to the plaintiffs in the prior action or to raise issues which should have been litigated therein by the plaintiffs.”
Establishes the primary ground for affirming the denial of the motion to vacate and amend—that res judicata bars the plaintiffs' attempts to relitigate decided issues.
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Join FLexlaw to unlock all legal intelligenceMurray Blattman and Norman Cohen, as trustees, filed suit against Williams Island Associates and related entities alleging breach of contract and disp…
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PER CURIAM.
This is a consolidated appeal by the plaintiffs Murray Blattman, as trustee, and Norman Cohen, as trustee, from (1) the denial of a motion to vacate final judgment under Fla.R.Civ.P. 1.540 and a motion for leave to amend complaint, (2) an adverse final summary judgment on a complaint alleging breach of contract, and (3) an order which found that the defendants Williams Island Associates, et al. were prevailing parties on count IY of a complaint as to the issue of utility assessments and were therefore entitled to attorney’s fees on this portion of the claim. Without unduly burdening this opinion, suffice it to say that no error has been made to appear as to the first two orders under review. The plaintiffs essentially sought to set aside the final summary judgment which this court ordered in Williams Island Associates, Ltd. v. Cohen, 547 So. 2d 954 (Fla. 3d DCA 1989), to amend their complaint four months after the trial court’s entry of such final summary judgment upon remand pursuant to our mandate, and to file a new complaint alleging breach of contract. These post-judgment motions and complaint were, in our view, all barred by the doctrine of res judicata as they represent efforts to reliti-gate issues which were either decided adversely to the plaintiffs in the prior action or to raise issues which should have been litigated therein by the plaintiffs. Del Vecchio v. Del Vecchio, 179 So. 2d 400 (Fla. 3d DCA 1965); see Gordon v. Gordon, 59 So. 2d 40, 43-44 (Fla.1952); AGB Oil Co. v. Crystal Exploration & Production Co., 406 So. 2d 1165, 1167 (Fla. 3d DCA 1981), rev. denied, 413 So. 2d 875 (Fla.1982).
Beyond that, the letter on which the plaintiffs rely to set aside the summary judgment, to amend their complaint, and to assert a new cause of action for breach of contract was clearly an unaccepted offer of compromise and settlement made by the defendant Williams Island and could form no basis for any of the relief sought by the plaintiffs. Benoit, Inc. v. District Bd. of Trustees, 463 So. 2d 1260 (Fla. 5th DCA 1984); § 90408, Fla.Stat. (1989).
We dismiss the appeal from the third order, stated above, without prejudice to the plaintiffs to appeal from a final trial court order, when entered, which sets the attorney’s fees in this case. The order under review only determines the right of the defendants to attorney’s fees without setting the amount, and, as such, is not a final order; it is, however, an appealable nonfinal order under Fla.R.App.P. 9.130(a)(3)(C)(iv), as it determines the issue of liability in favor of the party seeking affirmative relief.
Nonetheless, we have no jurisdiction to entertain this appeal because it was untimely filed more than thirty days after the rendition of such order; the defendants’ motion for rehearing could not stay the rendition of this nonfinal order. See Wagner v. Bieley, Wagner & Assoc., 263 So. 2d 1 (Fla.1972); Bell v. Geist, 531 So. 2d 406 (Fla. 5th DCA 1988); Marsh & McLennan, Inc. v. Aerolineas Nacionales de Ecuador, 530 So. 2d 971 (Fla. 3d DCA 1988).
The first two orders under review, as stated above, are affirmed. The appeal from the third order under review, as stated above, is dismissed without prejudice to appeal from the final order on attorney’s fees when entered.
Affirmed in part; dismissed in part.
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Winkelman v. Toll, 632 So. 2d 130 (Fla. 4th DCA 1994)…Associates Architects, P.A., 480 So. 2d 718 (Fla. 4th DCA 1986); Hurtado v. Hurtado, 407 So. 2d 627 (Fla. 4th DCA 1981); Vanderslice v. Vanderslice, 396 So. 2d 1185 (Fla. 4th DCA 1981). Appellant cites Blattman v. Williams Island Associates, Ltd., 592 So. 2d 269 (Fla. 3d DCA 1991) which states that an order determining the right of a defendant to attorney’s fees without setting the amount is an appeal-able non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), which authorizes appeals…
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Gonzalez Eng'g, Inc. v. Miami Pump & Supply Co., Inc., 641 So. 2d 474 (Fla. 3d DCA 1994)…DCA 1988); see also Avis Rent A Car Sys., Inc. v. Newman, 641 So. 2d 915 (Fla. 3d DCA 1994); Adlow, Inc. v. Mauda, Inc., 632 So. 2d 714 (Fla. 5th DCA 1994). Although there is language to the contrary in Blattman v. Williams Island Associates, Ltd., 592 So. 2d 269 (Fla. 3d DCA 1991), upon which the appellant relies, it is apparent that, since the appeal was in fact dismissed as untimely, the statement in question is no more than dictum. Because it contains no underlying reasoning and does not cite to our cont…
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Adlow, Inc. v. Mauda, Inc., 632 So. 2d 714 (Fla. 5th DCA 1994)…t a final order, as the order only determines appellees’ right to attorney’s fees without setting the amount; therefore, the matter has not been fully resolved on the merits. See Fla.R.App.P. 9.030(b)(1)(A); Blattman v. Williams Island Assoc., Ltd., 592 So. 2d 269 (Fla. 3d DCA 1991); see also, Welch v. Resolution Trust Corp., 590 So. 2d 1098, (Fla. 5th DCA 1991) (test for whether order is final for appeal purposes is whether it disposes of cause on its merits leaving no questions open for judicial determinati…1 / 2
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sebastian v. THE City of Miami (Fla. 3d DCA 2020)
- Wagner v. Bieley, 263 So. 2d 1 (Fla. 1972)
- AGB OIL Co. v. Crystal Exploration & Prod. Co., 406 So. 2d 1165 (Fla. 3d DCA 1981)
- Marsh & McLennan, Inc. v. Aerolineas Nacionales del Ecuador, 530 So. 2d 971 (Fla. 3d DCA 1988)
- del Vecchio v. del Vecchio, 179 So. 2d 400 (Fla. 3d DCA 1965)
- Bell v. Geist, 531 So. 2d 406 (Fla. 5th DCA 1988)
- Benoit, Inc. v. Dist. Bd. OF Trs. OF ST. Johns River Cmty. Coll. OF Fla. & Giffen Roofing Co. of Jacksonville, 463 So. 2d 1260 (Fla. 5th DCA 1984)
- Williams Island Assocs., Ltd. v. Cohen, 547 So. 2d 954 (Fla. 3d DCA 1989)