ERIC HOLM, D/B/A ANGELS DINER, ET AL., APPELLANTS,
v.
SARAH N. DEMETREE AND MARY L. DEMETREE, ETC., APPELLEES
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Holm appeals from an order denying his motion for relief from a $927,222 judgment for accelerated rent under a twenty-year lease. The court affirmed the denial, holding that mitigation of damages based on the lessor's subsequent re-leasing of the property is not an appropriate ground for relief under Rule 1.540(b)(5) because the issue should have been raised on a timely appeal.
Mitigation or credit for rent received subsequent to an acceleration is not an appropriate ground for relief pursuant to Rule 1.540, because such an issue should have been raised on a timely appeal rather than through a post-judgment motion for relief. Although the judgment may not be legally correct, it has become final and unassailable.
[1] A motion for relief from judgment under Rule 1.540 is not a substitute for a timely appeal.
[2] A judgment becomes final and unassailable when the time for appeal has passed.
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Join FLexlaw to unlock all legal intelligence“A motion for relief pursuant to rule 1.540 is not a substitute for a timely motion for rehearing, or a timely appeal.”
Establishes that Rule 1.540 motions cannot be used to circumvent the normal appellate process
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Join FLexlaw to unlock all legal intelligenceHolm entered into a twenty-year lease with the Demetrees. After Holm breached the lease, the Demetrees obtained a judgment against him for $927,222, r…
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SHARP, W., Judge.
Eric Holm, d/b/a Angels Diner, appeals from an order denying his motion for relief from a judgment against him for $927,222.00. That sum represents accelerated rent due on a twenty-year lease, discounted to present value, plus attorney’s fees and costs. Holm’s basis for relief pursuant to Florida Rule of Civil Procedure 1.540(b)(5) is that the lessor, the Demetrees, who obtained the judgment, have since leased the property to other parties, and they are now collecting rent on the premises. Holm argues that it is therefore inequitable for the Demetrees to have a judgment for the full amount of the twenty-year lease, and receive rent from a third party, for the same period of time. See Quintero— Chadid Corp. v. Gersten, 582 So. 2d 685 (Fla. 3d DCA 1991); Jimmy Hall’s Morningside, Inc., v. Blackburn & Peck Enterprises Inc., 235 So. 2d 344 (Fla. 2d DCA 1970).
However in this case, Holm did not appear for the trial nor did he appeal from the final judgment. A motion for relief pursuant to rule 1.540 is not a substitute for a timely motion for rehearing, or a timely appeal. A.W. Baylor Plastering, Inc. v. Mellon Stuart Co., 611 So. 2d 108 (Fla. 5th DCA 1992).
Pre-trial, Hohn raised the issue of mitigation of damages, and thus the issue of granting a judgment for the whole of the accelerated rent without any provision for crediting Holm with rents received after reletting the premises may have been erroneous and should have been raised on appeal. Quintero-Chadid Corp.; Jimmy Hall’s Morningside, Inc. Under these circumstances, mitigation or credit for rent received subsequent to an acceleration is not an appropriate ground for relief pursuant to Rule 1.540. See Sacco v. Slavin, 641 So. 2d 955 (Fla. 3d DCA 1994); Gregory v. Connor, 591 So. 2d 974 (Fla. 5th DCA 1991); Hensel v. Hensel, 276 So. 2d 227 (Fla. 2d DCA 1973).
Although perhaps not legally correct, the judgment under attack in this case has passed into the unassailable realm of finality. See Commercial Laundries, Inc. v. Golf Course Towers Associates, 568 So. 2d 501 (Fla. 3d DCA 1990); Fiber Crete Homes, Inc. v. Division of Administration, State, Department of Transportation, 315 So. 2d 492 (Fla. 4th DCA 1975).
AFFIRMED.
COBB and GOSHORN, JJ., concur.
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Bank ONE v. Arleen Batronie and Gene Batronie, 884 So. 2d 346 (Fla. 2d DCA 2004)…side the final judgment of foreclosure. See Hartley v. Andriuli 595 So. 2d 311, 312 (Fla. 2d DCA 1992). Once beyond the reach of rule 1.540(b), the final judgment of foreclosure “passed into the unassailable realm of finality.” See Holm v. Demetree, 681 So. 2d 868, 869 (Fla. 5th DCA 1996). The lack of jurisdiction of the trial court “may be considered independently by the appellate court, even if the issue was never raised in the trial court.” Stone v. Stone, 873 So. 2d 628, 630 n. 1 (Fla. 2d DCA 2004). A tr…
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Barnett v. Barnett, 718 So. 2d 302 (Fla. 2d DCA 1998)…arnett could have attacked the willfulness of his conduct on appeal, see Momenah v. Ammache, 616 So. 2d 121 (Fla. 2d DCA 1993), he did not. Judge Luce’s determination is final; Mr. Barnett’s conduct was willful, not neglectful. See Holm v. Demetree, 681 So. 2d 868, 869 (Fla. 5th DCA 1996) (holding that correctness of judge’s ruling is not an appropriate issue on motion for relief from judgment; when not appealed, judgment has passed into the “unassailable realm of finality.”). Although excusable neglect does…
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Gotham Ins. Co. v. Matthew, 179 So. 3d 437 (Fla. 5th DCA 2015)…e default final judgment, an occurrence or event that would justify the amended default final judgment under rule 1.540(b)(5). Therefore, we conclude that the default final judgment “passed into the unassailable realm of finality.” Holm v. Demetree, 681 So. 2d 868, 868-69 (Fla. 5th DCA 1996). Because the trial court amended the judgment to include substantive changes in the-findings when it lacked subject matter jurisdiction to do so, we [*443] vacate the amended default final judgment. VACATED. SAWAYA and…
Previewing 3 of 4 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)
- Jimmy Hall's Morningside, Inc. v. Blackburn & Peck Enters., Inc., 235 So. 2d 344 (Fla. 2d DCA 1970)
- Hensel v. Hensel, 276 So. 2d 227 (Fla. 2d DCA 1973)
- Quintero-Chadid Corp. v. Gersten, 582 So. 2d 685 (Fla. 3d DCA 1991)
- A.W. Baylor Plastering, Inc. v. Mellon Stuart Co. & Seaboard Sur. Co., 611 So. 2d 108 (Fla. 5th DCA 1992)
- Sacco v. Douglas Slavin, M.D., 641 So. 2d 955 (Fla. 3d DCA 1994)
- Commercial Laundries, Inc. v. Golf Course Towers Assocs., 568 So. 2d 501 (Fla. 3d DCA 1990)
- Gregory v. Connor, 591 So. 2d 974 (Fla. 5th DCA 1991)