BEAL BANK, S.S.B., INC., APPELLANT,
v.
IRWIN J. AND MARCIA M. SHERWIN, APPELLEES
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Beal Bank appealed an amended final judgment in a mortgage foreclosure case. The court affirmed, holding that Rule 1.540 relief from judgment cannot be used as a substitute for a timely appeal, and that an appeal from an amended judgment is limited to issues affected by the amendment.
Rule 1.540 is not a substitute for a timely appeal and cannot be used to overcome untimely filing. An appeal from an amended final judgment is limited to the party adversely affected by the amendment and should involve only those issues affected by the amendment. The bank is foreclosed from raising issues related to the original judgment.
[1] A motion for relief from judgment under Rule 1.540, Fla. …
[2] A party cannot use a motion for relief from judgment to overcome a failure to timely challenge an original final judgment.
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Join FLexlaw to unlock all legal intelligence“Rule 1.540 is designed for the correction of clerical mistakes and to provide a mechanism for relief from judgments, decrees, orders and proceedings under certain articulated and limited circumstances. It is not a substitute for a timely appeal.”
Establishes the foundational limitation on Rule 1.540 relief—it cannot be used to circumvent appellate deadlines.
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Join FLexlaw to unlock all legal intelligenceBeal Bank filed a foreclosure action that resulted in a final judgment dismissing the bank's claim with prejudice on September 20, 2001. The bank file…
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PER CURIAM.
Beal Bank appeals from an amended final judgment entered on its motion for relief from judgment. We affirm.
The bank filed an action to foreclose on certain mortgages. The trial resulted in a final judgment, dated September" 20, 2001, which dismissed the bank’s claim with prejudice. The bank untimely filed a motion for rehearing on October 3, 2001. The trial court denied the motion by an order dated October 17, 2001.
The bank appealed the final judgment and order denying its motion for rehearing. The appellees in that appeal moved to dismiss or strike the appeal as untimely because the motion for rehearing was served more than ten days from entry of the final judgment and therefore did not toll the time for filing an appeal. This court dismissed the appeal.
Subsequently, the bank filed a motion for relief from judgment, pursuant to rule 1.540, Fla. R. Civ. P. The bank argued that it had not received a copy of the final judgment of dismissal in sufficient time to file its motion for rehearing in a timely manner and that the trial court had granted unrequested relief in the final judgment. The trial court heard the motion and entered an amended final judgment which favorably addressed the bank’s claim. The bank filed this appeal. In this appeal, the bank seeks to raise issues related to the original final judgment from which it untimely appealed. This it cannot do.
Rule 1.540 is designed for the correction of clerical mistakes and to provide a mechanism for relief from judgments, decrees, orders and proceedings under certain articulated and limited circumstances. It is not a substitute for a timely appeal. Barnett v. Barnett, 718 So. 2d 302 (Fla. 2d DCA 1998); A.W. Baylor Plastering, Inc. v. Mellon Stuart Co., 611 So. 2d 108 (Fla. 5th DCA 1992). The bank simply cannot use the rule to overcome its failure to timely challenge the original final judgment.
We agree with the view articulated by the Fifth District Court of Appeal in First Cont’l Carp. v. Khan, 605 So. 2d 126 (Fla. 5th DCA), rev. denied, 613 So. 2d 3 (Fla.1992). An appeal from “an amended final judgment should be limited to the party adversely affected by the amendment and should involve only those issues affected by the amendment.” Id. at 130.
The amended final judgment in this case merely corrected the trial court’s mistake in going beyond the relief requested by the parties, and is favorable to the bank. The bank is therefore foreclosed from raising those issues related to the entry of the original final judgment.
The amended final judgment is affirmed.
POLEN, C.J., HAZOURI and MAY, JJ., concur.
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Churchville v. Ocean Grove R.V. Sales, Inc., 876 So. 2d 649 (Fla. 1st DCA 2004)…ion is substantial or material, but is entirely in the appellant’s favor, the appellant may not rely on this order to obtain an appeal of the issues decided adversely to the appellant in the earlier Final Judgment. Beal Bank, S.S.B. Inc. v. Sherwin, 829 So. 2d 961 (Fla. 4th DCA 2002); First Continental Corp. v. Khan, 605 So. 2d 126 (Fla. 5th DCA 1992). The “Final Order Granting Defendants Damon/Reliance’s 9/8/03 Motion to Dismiss for Lack of Prosecution,” entered on October 28, 2003, is a final order from whi…
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Caldwell v. Wal-Mart Stores, 980 So. 2d 1226 (Fla. 1st DCA 2008)…ned in the original judgment; rather “[ajppeal of such an amended final judgment should be limited to the party adversely affected by the amendment and should involve only those issues affected by the amendment”); Beal Bank, S.S.B., Inc. v. Sherwin, 829 So. 2d 961 (Fla. 4th DCA 2002) (same). Petitioner argues that an IME had already been performed by Dr. Ciano and an IME by Dr. Brown would be the second IME. A second IME may only be ordered under more stringent circumstances than the first. See § 440.13(5)(b…1 / 2
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U.S. Bank Nat'l Ass'n v. Paiz, 68 So. 3d 940 (Fla. 3d DCA 2011)…rrection of clerical mistakes and to provide a mechanism for relief from judgments, decrees, orders and proceedings under certain articulated and limited circumstances. It is not a substitute for a timely appeal.” Beal Bank, S.S.B., Inc. v. Sherwin, 829 So. 2d 961, 962 (Fla. 4th DCA 2002). See also Rutshaw v. Arakas, 549 So. 2d 769, 770 (Fla. 3d DCA 1989) (“It is well settled that a 1.540 motion cannot be employed as a substitute for a timely appeal, much less for a timely preservation of error in the underly…
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
- Barnett v. Barnett, 718 So. 2d 302 (Fla. 2d DCA 1998)
- First Cont'l Corp. v. Bashir H. Khan, 605 So. 2d 126 (Fla. 5th DCA 1992)
- A.W. Baylor Plastering, Inc. v. Mellon Stuart Co. & Seaboard Sur. Co., 611 So. 2d 108 (Fla. 5th DCA 1992)