Ellsworth v. Gallo

District Court of Appeal of Florida

Ellsworth v. Gallo

780 So. 2d 268, 2001 Fla. App. LEXIS 2155, 2001 WL 195065

CourtDistrict Court of Appeal of Florida

DecidedFebruary 28, 2001

DocketNo. 4D99-2866

StatusPublished

This text of 780 So. 2d 268 (Ellsworth v. Gallo) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ellsworth v. Gallo, 780 So. 2d 268, 2001 Fla. App. LEXIS 2155, 2001 WL 195065 (Fla. Ct. App. 2001).

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Opinion

PER CURIAM.

Appellant seeks review of a non-final order denying her motion for relief from judgment brought pursuant to rule 1.540(b), Florida' Rules of Civil Procedure. We affirm.

The motion which was denied was appellant’s second 1.540(b) motion for relief. Although we are sympathetic to appellant, who was representing herself prior to entry of the judgment, at a time when both she and her family members had serious health problems, the only grounds the trial court could have considered in the second motion for relief from judgment were grounds which were not litigated by the first motion. Atlas v. City of Pembroke Pines, 441 So.2d 652 (Fla. 4th DCA 1983); Malicoat v. LaChappelle, 390 So.2d 481 (Fla. 4th DCA 1980).

The factual allegations in appellant’s affidavit supporting her first 1.540 motion to vacate the default are ejctremely weak, and [269]*269the denial of that motion may well have been because of the neglect of counsel in drafting the motion and affidavit or in failing to show up for the hearing on it. Having found no grounds in the second motion which were not alleged in the first motion, other than neglect of her counsel on the first motion, we are compelled to affirm the denial of appellant’s motion for relief from judgment.

AFFIRMED.

KLEIN, SHAHOOD and TAYLOR, JJ., concur.

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PER CURIAM.

Appellant seeks review of a non-final order denying her motion for relief from judgment brought pursuant to rule 1.540(b), Florida' Rules of Civil Procedure. We affirm.

The motion which was denied was appellant’s second 1.540(b) motion for relief. Although we are sympathetic to appellant, who was representing herself prior to entry of the judgment, at a time when both she and her family members had serious health problems, the only grounds the trial court could have considered in the second motion for relief from judgment were grounds which were not litigated by the first motion. Atlas v. City of Pembroke Pines, 441 So.2d 652 (Fla. 4th DCA 1983); Malicoat v. LaChappelle, 390 So.2d 481 (Fla. 4th DCA 1980).

The factual allegations in appellant’s affidavit supporting her first 1.540 motion to vacate the default are ejctremely weak, and [269]*269the denial of that motion may well have been because of the neglect of counsel in drafting the motion and affidavit or in failing to show up for the hearing on it. Having found no grounds in the second motion which were not alleged in the first motion, other than neglect of her counsel on the first motion, we are compelled to affirm the denial of appellant’s motion for relief from judgment.

AFFIRMED.

KLEIN, SHAHOOD and TAYLOR, JJ., concur.

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Bluebook (online)

780 So. 2d 268, 2001 Fla. App. LEXIS 2155, 2001 WL 195065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellsworth-v-gallo-fladistctapp-2001.

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