ALEX BALFE, APPELLANT,
v.
GULF OIL COMPANY-LATIN AMERICA, APPELLEE
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Alex Balfe, president of a financially distressed shipbuilding company, personally guaranteed a $300,000 loan made by Gulf Oil Company to his company. When the company defaulted, Gulf sued Balfe on the guarantee and obtained summary judgment. On appeal, Balfe challenged the procedural validity of the summary judgment hearing before a substitute judge and the subsequent denial of his rehearing petition by yet another judge.
A successor judge cannot review, modify, or reverse the final orders of a predecessor judge on the merits absent showing of mistake or fraud. Because there was no showing of mistake or fraud, the petition for rehearing should have been heard by the judge who entered the summary judgment (Judge Wehle), not by Judge Balaban who did not hear the case.
[1] A successor judge cannot review, modify, or reverse the final orders of a predecessor on the merits and on the same facts, absent a showing of mistake or fraud.
[2] A petition for rehearing of a final order must be heard by the judge who entered the order, unless there is a showing of mistake or fraud.
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Join FLexlaw to unlock all legal intelligence“It is well established in Florida that a successor judge cannot review, modify or reverse, upon the merits on the same facts, the final orders of his predecessor in the absence of mistake or fraud.”
The court's statement of the controlling legal principle governing judicial succession and the limits on successor judges' authority.
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Join FLexlaw to unlock all legal intelligenceGulf Oil Company contracted with Dade Drydock Corporation for tanker construction. When Dade Drydock became financially distressed, Balfe, as presiden…
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Defendant-appellant seeks review of an adverse final summary judgment entered in favor of plaintiff-appellee.
Appellee, Gulf Oil Company-Latin American (GOCLA), contracted with Dade Drydock Corporation for the construction of a tanker. As the vessel neared completion, Dade Drydock became financially distressed. Defendant-appellant, Alex Balfe, as president of Dade Drydock Corporation, entered into a written agreement dated November 6, 1970 whereby appellee agreed to loan up to a maximum of $300,000 to or on behalf of Dade Drydock for the completion of the tanker. The agreement further provided that the loan was to be evidenced by a promissory note. In addition, appellant, pursuant to the November 6 agreement, individually and unconditionally signed a written guarantee to pay appellee GOCLA all sums with respect to Dade Drydock’s promissory note. Thereafter, appellee made up to $300,000 in payments to various people in behalf of Dade Drydock, which on December 4, 1970 executed a demand promissory note in favor of GOCLA in the same amount. Despite written demands by appellee on Dade Drydock and appellant, no payments were received. Subsequently, plaintiff GOCLA filed suit on the guaranty made by defendant Balfe. Plaintiff-ap-pellee moved for summary judgment and *95defendant moved to strike the motion and notice thereon. Judge Cullen granted defendant’s motion to strike notice to satisfy the requirement of RCP 1.510, 31 F.S.A., and then re-set at a later date a hearing on the motion for summary judgment. Thereafter, Judge Cullen became incapacitated and the motion was heard before Judge Wehle, a visiting judge, who entered the summary final judgment. Appellant then filed a petition for rehearing, which over his objection was set down for hearing before Judge Balaban who denied the petition.
On appeal, one of appellant’s contentions is that Judge Balaban was not empowered over appellant’s objections to hear and deny appellant’s petition for rehearing. We find merit in this argument.
It is well established in Florida that a successor judge cannot review, modify or reverse, upon the merits on the same facts, the final orders of his predecessor in the absence of mistake or fraud. See 18A Fla.Jur. Judges § 21 and cases cited therein. In the case sub judice, there being no showing of mistake or fraud, the appellant’s petition for rehearing should have been heard by the judge who entered the summary judgment rather than by a judge who did not hear the case.
Therefore, for the purpose of disposing of the petition for rehearing filed below, this court will relinquish jurisdiction and remand the case for Judge Wehle to consider and rule on the petition for rehearing, with or without oral argument thereon as the judge shall choose. Promptly after an order is made on the petition for rehearing as herein provided for, counsel for the appellant shall file herein a certified copy of such order. For the reasons stated hereinabove the order entered by Judge Balaban on the petition for rehearing is set aside. Further proceedings taken by this court on this appeal shall be as indicated or required dependent upon the order which shall be made on the petition for rehearing.
It is so ordered.
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Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla. 3d DCA 1974)…r was incorrect, Judge Bala-ban on July 2, 1973 entered an order denying the plaintiff’s motion to set aside the order of March 14, 1973 which the judge believed he could not reverse in light of Balfe v. Gulf Oil Company-Latin America, Fla.App.1973, 279 So. 2d 94, and then on July 5, 1973 he entered another order setting pretrial conference. He then reset the pretrial conference and ordered that the plaintiff make an election of remedies, suspending discovery by plaintiff until such time as he elects his rem…1 / 2
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Feder v. Feder, 291 So. 2d 641 (Fla. 3d DCA 1974)…it was sought to have that done by a judge who was a successor to the judge by whom the final judgment had been entered, who since had retired. Gardner v. Gardner, Fla.1953, 64 So. 2d 679, 680; Balfe v. Gulf Oil Company-Latin America, Fla.App. 1973, 279 So. 2d 94. Such a re-evaluation of awards made in a judgment of dissolution of marriage, after the judgment has become final, is not warranted (except for fraud or mistake). See Bailey v. Bailey, Fla.App.1967, 204 So. 2d 531; Mazzula v. Mazzula, Fla.App.1971,…
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Pratt v. Gerber, 330 So. 2d 552 (Fla. 3d DCA 1976)…2d 367; Bailey v. Bailey, Fla.App. 1967, 204 So. 2d 531, 532; Tingle v. Dade County Board of County Commissioners, Fla.1971, 245 So. 2d 76; Barnard v. Overstreet, Fla.App. 1972, 259 So. 2d 517; Balfe v. Gulf Oil Company-Latin America, Fla.App.1973, 279 So. 2d 94; City of Miami Beach v. Chadderton, Fla.App.1975, 306 So. 2d 558; Better Construction, Inc. v. Camacho Enter [*554] prises, Inc., Fla.App.1975, 311 So. 2d 766. Cf. Deemer v. Hallett Pontiac, Inc., Fla.App.1974, 288 So. 2d 526. As applied to the cir…
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