SEVEN-UP BOTTLING COMPANY OF MIAMI, INC., A FLORIDA CORPORATION, APPELLANT,
v.
GEORGE CONSTRUCTION CORP., A FLORIDA CORPORATION, AND GEORGE VIZENTHAL, APPELLEES
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Seven-Up Bottling Company appealed a foreclosure decree and filed a motion to relinquish appellate jurisdiction so the trial court could consider a motion to vacate the decree based on newly discovered evidence and fraud. The court denied the motion, holding that the one-year limitation period in Rule 1.38(b) for filing such motions is mandatory and is not tolled by the filing of an appeal.
The court held that the one-year limitation period is mandatory and is not tolled by the filing of an appeal. Accordingly, the motion to relinquish appellate jurisdiction was denied because the motion to vacate was filed outside the one-year period.
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order, or proceeding for the following reasons: * * * (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; * * *. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after judgment, decree, order, or proceeding was entered or taken.”
Establishes the mandatory one-year time limit for motions to vacate under Rule 1.38(b)
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Join FLexlaw to unlock all legal intelligenceA final decree of foreclosure was entered on April 3, 1962. On April 19, 1963—more than one year later—the appellant filed a motion to vacate and set …
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The appellant filed and we have heard oral argument on a motion to relinquish appellate jurisdiction and to remand the cause to the circuit court so that court might entertain a motion to vacate and set aside a final decree of foreclosure. We do not ordinarily write opinions on the disposition of motions, but since the decision on this motion is controlled by our construction of one of the rules of civil procedure, we deem it necessary in the interest of the bench and bar to record our views.
The final decree of foreclosure appealed was entered on April 3, 1962. The motion to vacate and set aside the decree was filed in the circuit court on April 19, 1963. Attached thereto were five supporting affidavits. A copy of that motion was appended to the motion to relinquish jurisdiction filed in this court.
The mdtion to vacate is based on the provisions of Rule 1.38(b) (2) and (3), Florida Rules of Civil Procedure, 30 F.S.A., which, in pertinent part, reads as follows:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order, or proceeding for the following reasons: * * * (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; * * *. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after judgment, decree, order, or proceeding was entered or taken. * * *” [Emphasis supplied]
The grounds of the motion to vacate were newly discovered evidence, fraud and misrepresentation, and the motion was filed more than one year after the entry of the final decree sought to be vacated. In view of the mandatory character of the language used in the quoted portion of the applicable rule, we deem it unnecessary to determine, whether or not the motion to vacate states a prima facie case.1 It was suggested at *13oral argument that the one-year limitation contained in the rule was tolled by the filing of the appeal. This suggestion is unsound in view of the provisions of the rule itself providing that such a motion does not affect the finality of the judgment or suspend its operation, and the construction placed thereon by federal courts and text writers.2
It follows that the motion to relinquish appellate jurisdiction for the purpose of inquiring into the validity of the decree in question by motion to vacate, filed in the trial court, is denied.
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Citator
Cited By (13 total)
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Pruitt v. Brock, 437 So. 2d 768 (Fla. 1st DCA 1983)…ore the 1.540(b) motions were filed, and the only theory advanced for the judgments’ tolling was that the filing of the notice of appeal itself acted to toll the time period. See Seven-up Bottling Company of Miami, Inc. v. George Construction Corp., 153 So. 2d 11 (Fla. 3d DCA 1963); Paulino v. Hardister, 306 So. 2d 125 (Fla. 2d DCA 1974). Those cases, as noted by the Third District in Glatstein, are thus factually distinguishable from Redwing and Glatstein, wherein timely 1.540(b) motions were filed, but the…
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Flemenbaum v. Lily Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994)…ehuff, 433 So. 2d 1021 (Fla. 4th DCA 1983). The appeal did not toll the time for filing the rule 1.540(b) motion. Legler v. Kwitney, Kroop & Scheinberg, P.A., 520 So. 2d 95 (Fla. 4th DCA 1988); Seven-Up Bottling Co. of Miami v. George Constr. Corp., 153 So. 2d 11 (Fla. 3d DCA 1963).…
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In re Guardianship of Theresa Marie Schiavo v. Schiavo, 792 So. 2d 551 (Fla. 2d DCA 2001)…ot more than 1 year after the judgment, decree, order, or proceeding was entered or taken”); Hartley v. Andriuli, 595 So. 2d 311 (Fla. 2d DCA 1992); Wescott v. Wescott, 444 So. 2d 495 (Fla. 2d DCA 1984); Seven-Up Bottling Co. v. George Constr. Corp. 153 So. 2d 11 (Fla. 3d DCA 1963). The Schindlers’ motion was filed more than one year after the entry of the final order in the adversary proceeding. The Schindlers ask this court to hold, for the purposes of rule 1.540, that the one-year period commences upon r…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Klapprott v. United States, 335 U.S. 601 (U.S. 1949)