ROBERT CALVIN BLAND, A/K/A BOBBY BLUE BLAND, PETITIONER,
v.
BESSIE LEE MITCHELL, RESPONDENT
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The Florida Supreme Court resolved a conflict among appellate districts regarding the reviewability of orders denying motions to set aside final judgments in default cases. The Court held that such orders are appealable under Florida Appellate Rule 4.2, and approved the Fourth District's decision denying certiorari review while disapproving the conflicting Third District decision in Bursten v. Cooper.
Orders granting or denying motions to vacate defaults and judgments entered pursuant to defaults are reviewable on direct appeal under Florida Appellate Rule 4.2. The appellate inquiry is limited to whether the trial court abused its discretion in ruling on the motion; the appeal does not bring up the merits of the final judgment itself.
[1] Orders denying or granting relief under Florida Rule of Civil Procedure 1.540 are reviewable by appeal under Florida Appellate Rule 4.2.
[2] A denial or granting of a motion to vacate a final judgment does not bring up for review the merits of the final judgment sought to be vacated.
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Join FLexlaw to unlock all legal intelligence“Appeals may be prosecuted in accordance with this rule * * * from decisions, orders, judgments or decrees entered in civil actions after final judgment, except those relating to motions for new trial, rehearing or reconsideration; from orders granting or denying motions to vacate defaults”
Establishes that Florida Appellate Rule 4.2 expressly provides for appellate review of orders denying motions to vacate defaults
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Join FLexlaw to unlock all legal intelligenceDefendant Bland was sued in a paternity action and failed to appear for his deposition, resulting in a decree pro confesso. A Final Decree of Paternit…
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We have for review on conflict certiora-ri a decision of the District Court of Appeal, Fourth District,1 denying certiorari review of a trial court order denying a motion to set aside a final judgment and to *48stay execution thereon. We granted review because of a conflict with the Third District Court of Appeal opinion in Bur-sten v. Cooper.2
The defendant filed a sworn motion to set aside the final judgment some twenty months after a Final Decree of Paternity was entered against him on the basis of a decree pro confesso filed eleven months earlier due to defendant’s willful failure to appear for the taking of his deposition. The defendant claimed denial of due process by being deprived of notice of the final hearing and the opportunity to present his defenses. The district court denied the petition for common law certiorari review because defendant failed to use the available remedy of direct appeal from the order of denial.
Defendant’s motion to set aside the final judgment was necessarily brought under Florida Rule of Civil Procedure 1.540, 31 F.S.A., allowing relief from final judgments for the reasons enumerated therein. The proper route for review of an order resulting from a Rule 1.540 motion is controlled by Florida Appellate Rule 4.2, 32 F.S.A. Paragraph (a) of the 1968 Revision of Rule 4.2 specifically provides that:
“Appeals may be prosecuted in accordance with this rule * * * from decisions, orders, judgments or decrees entered in civil actions after final judgment, except those relating to motions for new trial, rehearing or reconsideration; from orders granting or denying motions to vacate defaults and from orders granting or denying dismissal for lack of prosecution or denying reinstatement under Rule 1.420 R.C.P. * *
In the case of Bursten v. Cooper,3 the case relied upon for conflict jurisdiction here, the trial court denied a motion to set aside a final judgment entered subsequent to a default. The district court’s holding that the order denying the motion to set aside the default and default judgment was not reviewable on appeal was arrived at under former wording of Florida Appellate Rule 4.2 which has since been twice amended and now provides expressly for appeals “from orders granting or denying motions to vacate defaults * * * ”, which express provision necessarily includes judgments entered pursuant to and on the basis of such default, as in this instance. Insofar as the Bursten decision is at odds with the result reached herein, it is disapproved.
The holdings of the Fourth District Court of Appeal in Rogers v. First National Bank at Winter Park4 and of the First District Court in Frank v. Amara 5 are in harmony with the present wording of the Rule. In Frank v. Amara the First District states that an order either denying or granting relief under Florida Rule of Civil Procedure 1.540 is reviewable upon appeal under Florida Appellate Rule 4.2. We emphasize that, as pointed out by the district court in Rogers, supra, a denial (or granting) of a motion to vacate a final judgment cannot on appeal bring up for review the merits of the final judgment sought to be vacated.6 The inquiry must be confined to determining whether in ruling on the motion the trial court abused its discretion on the facts and circumstances asserted in the motion’s behalf. The motion does not *49affect the finality of the final judgment or suspend its operation.7
The decision of the district court is approved.
ERVIN, C. J., ROBERTS and CARLTON, JJ., and MURPHREE, Circuit Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988)…nted relief was the final judgment. The order denying relief is a post-judgment, interlocutory order. The review of such an order does not include the merits of the final decree sought to be vacated or any other order or judgment. Bland v. Mitchell, 245 So. 2d 47 (Fla.1970); Rushing v. Chappell, 247 So. 2d 749 (Fla. 1st DCA 1971); Odum v. Morningstar, 158 So. 2d 776 (Fla. 2d DCA 1963). Thus, our only concern is whether the trial court abused its discretion in denying relief from the final judgment. A judgm…
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Wright v. Sterling Drugs, Inc., 287 So. 2d 376 (Fla. 2d DCA 1973)…is denied without prejudice to the right of petitioner to seek review of the matters contained therein by way of appeal from the final judgment. HOBSON, Acting C. J., and JOHNSON, W. CLAYTON, Associate Judge, concur. . Bland v. Mitchell, Fla.1970, 245 So. 2d 47.…
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Lesperance v. Lesperance, 257 So. 2d 66 (Fla. 3d DCA 1971)…ion, as to whether the trial judge should vacate the prior judgment because of alleged fraud. Butler v. Butler, Fla. App.1965, 172 So. 2d 899; Rogers v. First National Bank at Winter Park, Fla.App. 1969, 223 So. 2d 365; Bland v. Mitchell, Fla. 1970, 245 So. 2d 47. No abuse of discretion has been demonstrated on this record. Notwithstanding the fact that no proper point has been preserved on appeal to urge error on the granting of a charging lien and the fixing of the amount of an attorney's fee against the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clyde Odum et ux. v. Morningstar, 158 So. 2d 776 (Fla. 2d DCA 1963)
- Inger Rogers v. First Nat'l Bank AT Winter Park, 223 So. 2d 365 (Fla. 4th DCA 1969)
- Frank v. Amara, 235 So. 2d 537 (Fla. 1st DCA 1970)
- Bodner v. Blackwelder, 181 So. 2d 373 (Fla. 3d DCA 1965)
- Tessie Czuchta v. Merwin W. Williard, 231 So. 2d 224 (Fla. 4th DCA 1970)
- Bursten v. Cooper, 127 So. 2d 134 (Fla. 3d DCA 1961)