Onofrio v. Onofrio

561 So. 2d 1200, 1990 Fla. App. LEXIS 1794, 1990 WL 29509

• Court: District Court of Appeal of Florida
• Decided: March 20, 1990
• Docket: No. 89-2404
• Status: Published

Opinion

PER CURIAM.

We grant appellant’s motion for clarification of our order dismissing her appeal, vacate the dismissal, and reinstate the appeal.

Cezarina Onofrio moved for summary judgment pursuant to rule 1.510, Florida Rules of Civil Procedure, in her action to set aside a judgment as void. The trial court denied her motion, and she appealed. This court concluded that the order appealed was not an appealable non-final order, and dismissed the appeal. Onofrio sought clarification, urging that although her motion requested summary judgment pursuant to rule 1.510, Florida Rules of Civil Procedure, the ground on which it was predicated was that the underlying judgment was void, and thus the judgment was an appealable, non-final order under rule 9.130(a)(5), Florida Rules of Appellate Procedure, as an order entered on motion pursuant to rule 1.540, Florida Rules of Civil Procedure. The committee note to rule 9.130(a)(5), Florida Rules of Appellate Procedure, states that the rule applies to orders on motions which enumerate any of the grounds set forth in rule 1.540, Florida Rules of Civil Procedure. Because a void judgment is a ground for relief from judgment pursuant to rule 1.540(b)(4), Florida Rules of Civil Procedure, we reinstate the appeal.