Erace v. Erace

District Court of Appeal of Florida

Erace v. Erace

895 So. 2d 1226, 2005 Fla. App. LEXIS 2469, 2005 WL 474829

CourtDistrict Court of Appeal of Florida

DecidedMarch 2, 2005

DocketNo. 3D03-1838

StatusPublished

This text of 895 So. 2d 1226 (Erace v. Erace) 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

Erace v. Erace, 895 So. 2d 1226, 2005 Fla. App. LEXIS 2469, 2005 WL 474829 (Fla. Ct. App. 2005).

Pincite

Opinion

GERSTEN, J.

Appellant, Joseph Erace (“Erace”), seeks review of the trial court’s adverse order denying his motion for relief from judgment and his motion to vacate the order of dismissal. We affirm.

Because Erace neither moved for rehearing nor appealed the trial court’s summary judgment order, he cannot use Florida Rule of Civil Procedure, 1.540 to obtain relief. Rule 1.540 is designed for the correction of clerical mistakes and to provide a mechanism for relief from judgment under certain limited circumstances including mistake, inadvertence, excusable neglect, newly discovered evidence, fraud or other misconduct of an adverse party. See Fla. R. Civ. P. 1.540. It is not to be used, however, as a substitute for a timely appeal. See Curbelo v. Ullman, 571 So.2d 443 (Fla.1990). Further, the trial court cannot revisit a final judgment under Rule 1.540 to correct errors which may have been corrected on a motion for rehearing. See Lowery Eng’g and Elecs. Inc. v. Francis and Assocs., 536 So.2d 1142 (Fla. 2d DCA 1988).

Accordingly, we affirm the trial court’s order in its entirety.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

GERSTEN, J.

Appellant, Joseph Erace (“Erace”), seeks review of the trial court’s adverse order denying his motion for relief from judgment and his motion to vacate the order of dismissal. We affirm.

Because Erace neither moved for rehearing nor appealed the trial court’s summary judgment order, he cannot use Florida Rule of Civil Procedure, 1.540 to obtain relief. Rule 1.540 is designed for the correction of clerical mistakes and to provide a mechanism for relief from judgment under certain limited circumstances including mistake, inadvertence, excusable neglect, newly discovered evidence, fraud or other misconduct of an adverse party. See Fla. R. Civ. P. 1.540. It is not to be used, however, as a substitute for a timely appeal. See Curbelo v. Ullman, 571 So.2d 443 (Fla.1990). Further, the trial court cannot revisit a final judgment under Rule 1.540 to correct errors which may have been corrected on a motion for rehearing. See Lowery Eng’g and Elecs. Inc. v. Francis and Assocs., 536 So.2d 1142 (Fla. 2d DCA 1988).

Accordingly, we affirm the trial court’s order in its entirety.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

895 So. 2d 1226, 2005 Fla. App. LEXIS 2469, 2005 WL 474829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erace-v-erace-fladistctapp-2005.

Opinion

Related

Cite This Page — Counsel Stack