E.H.G. ENTERPRISES, INC., APPELLANT,
v.
I. JOEL AMSTELL AND AMSTELL, INC., A/K/A AMSTELL ASSOCIATES, INC., APPELLEES
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E.H.G. Enterprises, Inc., a foreign corporation, appeals an order denying its motion to vacate a final summary judgment entered against it in a contract dispute. The court affirmed, holding that the appellant's belated motion to vacate—filed five months after judgment—was procedurally improper and that the trial judge correctly denied it.
The court affirmed the trial court's denial of the motion to vacate. The court held that having failed to file a timely petition for rehearing or appeal within the proper procedural timeframe, the appellant's motion to vacate filed five months after judgment was procedurally improper and the trial judge was correct in denying it.
[1] A motion to vacate a final summary judgment filed several months after its entry is properly denied when the defendant failed to timely seek rehearing or perfect an appea…
[2] A defendant asserting affirmative defenses of lack of jurisdiction and insufficiency of service of process must raise these issues through timely rehearing or appeal, not…
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Join FLexlaw to unlock all legal intelligence“In entering the summary final judgment against appellant, the trial judge determined that appellant's affirmative defenses with respect to jurisdiction lacked merit. At this point the proper appellate procedure would have been to file a petition for rehearing within 10 days pursuant to Fla.R. Civ.P. 1.530 or perfect an appeal to this court.”
Establishes the correct procedure for challenging a judgment that addresses jurisdictional defenses—either rehearing or timely appeal, not a belated motion to vacate
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Join FLexlaw to unlock all legal intelligencePlaintiff I. Joel Amstell filed an amended complaint against multiple defendants including E.H.G. Enterprises, Inc., a foreign corporation, alleging b…
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PER CURIAM.
Defendant, E.H.G. Enterprises, Inc., appeals an order denying its motion to vacate final summary judgment.
Plaintiff-appellee I. Joel Amstell filed an amended complaint for breach of contract, quantum meruit, violation of the Bulk Sales Act and fraudulent conveyance against defendants: E.H.G. Enterprises of Florida, Inc., E.H.G. Financial Corporation,1 E.H.G. Enterprises, Inc., a Puerto Rico corporation, American Design and Development Corporation of Miami and Continental Mortgage Investors, a Massachusetts business trust. Appellee served appellant E.H.G. Enterprises, Inc., a foreign corporation, by serving the Secretary of State pursuant to Sections 48.181 and 48.161, Florida Statutes (1973).
Appellant answered the complaint and raised as affirmative defenses lack of jurisdiction over the appellant, insufficiency of process and insufficiency of service of process. Appellant also raised additional affirmative defenses going to the merits. Subsequently plaintiff, after hearing, was granted summary judgment on June 5,1975 as to E.H.G. Financial Corporation, E.H.G. Enterprises of Florida, Inc. and appellant E.H.G. Enterprises, Inc.
On November 21, 1975 appellant filed a motion to vacate the summary judgment on the grounds the judgment against it was void because appellant was not amenable to substituted service of process for lack of proof it was doing business in Florida; and even if appellant was subject to substituted service, appellee did not comply with the requisites of the statute and, therefore, the service was void. The trial judge, after hearing, entered an order denying the motion to vacate.
We affirm.
In entering the summary final judgment against appellant, the trial judge determined that appellant’s affirmative defenses with respect to jurisdiction lacked merit. At this point the proper appellate procedure would have been to file a petition for rehearing within 10 days pursuant to Fla.R. Civ.P. 1.530 or perfect an appeal to this court. See State ex rel. Eli Lilly and Company v. Shields, 83 So. 2d 271 (Fla.1955). Having failed to do either of the above, we find the trial judge was eminently correct in denying appellant’s motion to vacate filed some five months after the entry of the summary judgment. See Shelby Mutual Ins. Co. of Shelby, Ohio v. Pearson, 236 So. 2d 1 (Fla.1970).
Affirmed.
. Both totally owned subsidiaries of appellant E.H.G. Enterprises, Inc.
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Citator
Authorities Cited
- Shelby Mut. Ins. Co. OF Shelby v. Tillman Pearson, 236 So. 2d 1 (Fla. 1970)
- State of Fla. ex rel. ELI Lilly & Co. v. Honorable Bayard B. Shields, 83 So. 2d 271 (Fla. 1955)