WILADEAN R. KUYKENDALL, APPELLANT,
v.
ERVIN G. KUYKENDALL, APPELLEE
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In a dissolution of marriage case, the trial court vacated a final judgment that converted the parties' jointly-owned fish camp from tenancy by the entireties to tenancy in common. The appellate court reversed, holding that the appellee's mistaken understanding of the law and his failure to comprehend the judgment's provisions before entry did not constitute grounds under Florida Rule 1.540(b) to vacate the judgment.
The trial court abused its discretion in vacating the final judgment because a mistaken view of the law does not constitute grounds for relief under Rule 1.540(b), and appellee had every opportunity before entry of judgment to understand the law and the meaning of the provisions to which he assented.
[1] A mistaken view of the law does not constitute grounds for relief from a final judgment under Rule 1.540(b), Florida Rules of Civil Procedure.
[2] A trial court abuses its discretion by setting aside a final judgment when the grounds presented are not within the contemplation of Rule 1.540(b), Florida Rules of Civil…
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Join FLexlaw to unlock all legal intelligence“a mistaken view of the law is not one of those circumstances contemplated by Rule 1.540(b), Florida Rules of Civil Procedure”
Establishes that legal error by a party or counsel is not grounds for vacating a final judgment under the applicable rule.
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Join FLexlaw to unlock all legal intelligenceAppellant filed for dissolution of marriage in 1973 with an agreed-upon final judgment prepared by counsel. Prior to dissolution, the parties owned a …
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SPECTOR, Acting Chief Judge.
By interlocutory appeal appellant seeks reversal of an order vacating and setting aside a final judgment of dissolution of marriage.
Appellant filed her petition for dissolution of marriage in 1973, and counsel for appellant prepared a final judgment which was agreed to by counsel for appellee. Prior to the dissolution, appellant and appellee owned a fish camp in Taylor County as tenants by the entireties. The final judgment was entered by the lower court and the real property was ordered to be thenceforth owned by the parties as tenants in common.
The lower court set aside the final judgment on the basis of appellee’s contention that he never intended for the real property to be held equally. Appellee also contends that he paid for the fish camp from his own resources and that it was not until after the entry of judgment that he real ized that he would not have an opportunity to present evidence as to his ownership of the property.
The setting aside of a final judgment is governed by Rule 1.540(b), Florida Rules of Civil Procedure, which provides as follows :
“(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. 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: (1)mistake, inadvertence, surprise or excusable neglect; (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; (4) the judgment or decree is void; (5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application. . . . ”
It is evident from the circumstances of the instant case that counsel for appellee mistakenly believed that he could assert ownership of the real property when it was partitioned after the final judgment. However, a mistaken view of the law is not one of those circumstances contemplated by Rule 1.540(b), Florida Rules of Civil Procedure. White v. Spears, 123 So. 2d 689 (Fla.App.1960); E & E Electric Contractors, Inc. v. Singer, 236 So. 2d 195 (Fla.App.1970).
Also, it should be pointed out that the merits of the case as to whether appel-lee is entitled to exclusive ownership of the property are not before this court. The sole issue that can be decided on appeal is whether the trial court abused its discretion in setting aside the final judgment. Graham v. Eisele, 245 So. 2d 682 (Fla.App.1971) and Zwakhals v. Senft, 206 So. 2d 62 (Fla.App.1968).
We hold that the lower court did abuse its discretion in that there was no allegation of any circumstances within the contemplation of the rule. Appellee had every opportunity prior to the entry of final judgment to determine what is the law of this state in regard to distribution of real property upon dissolution of marriage. Appellee even assented to the entry of a final judgment which contained the very provision which he now contends was a mistake. His alleged failure to comprehend the meaning of such a provision before final judgment was entered cannot now support the vacating of that judgment.
Accordingly, the order setting aside the final judgment is reversed.
JOHNSON and BOYER, JJ., concur.
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Citator
Cited By (11 total)
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BMW OF N. Am., Inc. v. Krathen, 471 So. 2d 585 (Fla. 4th DCA 1985)…lassified as a generally accepted practice among the local bar. Therefore, we find that the trial court acted well within its discretion by denying BMW’s motion for post-judgment relief. See In re Will of Aston, supra; cf. Kuykendall v. Kuykendall, 301 So. 2d 466 (Fla. 1st DCA 1974) (mistaken view of the law does not justify relief under rule 1.540(b)). [*589] In Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So. 2d 68 (Fla.1978), the supreme court observed: It has never been the role of the trial cou…
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Fiber Crete Homes, Inc. v. Division OF Administration, 315 So. 2d 492 (Fla. 4th DCA 1975)…or orders under a limited set of circumstances; it was neither intended to serve as a substitute for the new trial mechanism prescribed by Rule 1.530 nor as a substitute for appellate review of judicial error. Kuykendall v. Kuykendall, Fla.App.1974, 301 So. 2d 466; Constant v. Tillitson, Fla.App.1968, 214 So. 2d 91; Volumes in Value, Inc., supra. As was observed in Weymer, supra, “a decision is inadvertent if it is the result of oversight, neglect or accident as distinguished from judicial error’3. It appear…
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Duckworth v. Ingrid O. Duckworth, 414 So. 2d 562 (Fla. 3d DCA 1982)…e law does not amount to the excusable neglect requisite to vacating a default under Rule 1.540(b), Florida Rules of Civil Procedure. Gross v. Simanonok, 366 So. 2d 47 (Fla. 2nd DCA), cert. denied, 376 So. 2d 75 (Fla.1979); Kuykendall v. Kuykendall, 301 So. 2d 466 (Fla. 1st DCA 1974). As a general rule, many jurisdictions impute such negligence to the client, thereby preventing the vacation of a default upon retention of different counsel.1 Nonetheless, we are averse to visiting the sins of the attorney upon…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Angell M. White and Anna White v. Spears, 123 So. 2d 689 (Fla. 3d DCA 1960)
- E & E Elec. Contractors, Inc. v. Myron Singer and Eleanor Singer, 236 So. 2d 195 (Fla. 3d DCA 1970)
- Graham v. Eisele, 245 So. 2d 682 (Fla. 3d DCA 1971)
- Zwakhals v. Senft, 206 So. 2d 62 (Fla. 4th DCA 1968)