Atlas v. City of Pembroke Pines, 82-1434
| Decision Date | 28 September 1983 |
| Docket Number | No. 82-1434,82-1434 |
| Citation | 441 So.2d 652 |
| Parties | Bonnie ATLAS, Appellant, v. CITY OF PEMBROKE PINES, Appellee. |
| Court | Florida District Court of Appeals |
Phillip Michael Cullen, III, Fort Lauderdale, for appellant.
Steven L. Josias of Josias and Goren, Fort Lauderdale, for appellee.
A default and final judgment were entered against the City of Pembroke Pines. Thereafter, the city filed a motion for relief from judgment, pursuant to Rule 1.540(b), Fla.R.Civ.P., which alleged that the judgment was void due to defective service of process. The motion was denied. Rather than appeal, the city filed a second, more elaborate motion for relief from judgment which reasserted the same grounds set forth in the first motion. The second motion was granted and this appeal ensued. We reverse.
A trial court is without jurisdiction to entertain a second motion for relief from judgment which attempts to relitigate matters settled by a prior order denying relief. Malicoat v. LaChappelle, 390 So.2d 481 (Fla. 4th DCA 1980); Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971). The city attempts to distinguish this case from Malicoat and Perkins by contending that its second motion--though not styled as such--was actually a motion for rehearing. Thus, it claims not to have taken the impermissible "second bite." We do not agree. First, the motion's substance and form do not comport with a motion for rehearing. But more importantly, an order denying a motion for relief from judgment, pursuant to Rule 1.540(b), Fla.R.Civ.P., is not subject to a motion for rehearing. Potucek v. Smeja, 419 So.2d 1192 (Fla. 2d DCA 1982).
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...v. Smeja, 419 So.2d 1192 (Fla. 2d DCA 1982), and its progeny Smith v. Weede, 433 So.2d 992 (Fla. 5th DCA 1983); Atlas v. City of Pembroke Pines, 441 So.2d 652 (Fla. 4th DCA 1983), rev. denied, 450 So.2d 485 (Fla.1984); and Irwin v. Walker, 468 So.2d 241 (Fla. 2d DCA 1984). These cases are b......
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