Don Mott Agency, Inc. v. Harrison, 77-1531
| Decision Date | 02 August 1978 |
| Docket Number | No. 77-1531,77-1531 |
| Citation | 362 So.2d 56 |
| Parties | DON MOTT AGENCY, INC., a Florida Corporation, Appellant, v. Julia HARRISON et al., Appellee. |
| Court | Florida District Court of Appeals |
Richard A. Strickland, of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for appellant.
John M. Edman, of Meros, Coit, Edman & Meros, St. Petersburg, for appellee.
In this interlocutory appeal from a post-judgment order 1 we must determine whether a motion to set aside a final judgment is timely filed when it is filed more than one year after the trial court entered its order approving the settlement upon which the final judgment was based but less than one year after entry of that final judgment where there is no evidence that the motion was otherwise untimely filed. We hold that the motion was timely filed. We must also determine whether this court's denial of a petition for writ of certiorari to review an order denying a motion In limine to exclude evidence of an allegedly fraudulently procured settlement constitutes a ruling that the fraud did not exist, thereby precluding further inquiry into the issue of fraud. We hold that the denial of a petition for writ of certiorari does not affirm the trial court's determination of any issue of fact inherent in the judicial act, review of which was sought.
The circumstances giving birth to these controversies are as follows: Ms. Harrison sued Dr. Pullum for medical malpractice resulting in the death of Ms. Harrison's daughter. Dr. Pullum brought a third-party action against appellant for indemnification. The malpractice action and the indemnification action were severed for trial. However, Dr. Pullum settled with Ms. Harrison prior to trial. In that settlement, damages were stipulated to amount to $250,000 and Dr. Pullum assigned his rights in the indemnification action to Ms. Harrison. The trial court approved the settlement on March 19, 1976. Final judgment on the malpractice claim between Ms. Harrison and Dr. Pullum was entered on May 13, 1976. At no time did appellant participate in the negotiations, settlement, or proceeding for court approval.
At a pretrial conference in the indemnification action, Ms. Harrison announced her intention to offer the stipulated final judgment in the malpractice action as proof of damages at trial of the indemnification claim. Appellant alleged that the settlement was procured by collusion between Ms. Harrison and the allegedly judgment-proof Dr. Pullum. Appellant filed a motion In limine to exclude evidence of that settlement or the final judgment entered thereon from the trial in the indemnification action. Appellant also filed a motion to sever the trial of appellant's obligation to indemnify Dr. Pullum from the trial of the issue of the amount of damages for which appellant must indemnify Dr. Pullum. (The evidence of the settlement and final judgment were asserted to be relevant only in this subsequent trial.) The motions were denied by the trial court. Appellant sought review by certiorari. This court denied certiorari. Don Mott Agency v. Harrison, 341 So.2d 298 (Fla. 2d DCA 1976).
On May 6, 1977, appellant filed a motion to set aside the final judgment entered on the settlement between Dr. Pullum and Ms. Harrison. Ms. Harrison responded with a motion to strike. The trial court granted the motion to strike because the motion to set aside judgment was not timely filed from the time of entry of the order approving settlement and because "the issue of 'fraud' has already been decided in this cause . . . (when the) lower court's order denying the Motion in Limine was affirmed 2 . . .."
Appellant first contests the trial court's ruling that the motion to set aside the final judgment was not timely filed. While that motion was not filed until more than one year after the trial court entered its order approving the settlement upon which final judgment was later rendered, it was filed within one year after entry of the final judgment. There was no showing that the motion was filed an unreasonable time after entry of the final judgment. Florida Rule of Civil Procedure 1.540(b) requires filing of a motion to relieve a party from a final judgment or order for the reasons of fraud, misrepresentation, or other misconduct of the adverse party within a reasonable time not more than one year after the judgment or order was entered. The order under review made it abundantly clear that the trial court considered the motion untimely filed because more than the one-year period specified in Rule 1.540(b) had lapsed from the time of entry of the order approving settlement. The trial court would have been correct, and we would affirm, had the motion sought to set...
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...Corp. v. Maddox Roof Service, Inc., 362 So.2d 99 (Fla. 2d DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979); Don Mott Agency, Inc. v. Harrison, 362 So.2d 56 (Fla. 2d DCA 1978), or establish the law of the case, Don Mott Agency. Thus, neither res judicata, collateral estoppel, nor the law o......
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Miccosukee Tribe of Indians of Florda v. Dep't of Envtl. Prot.
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