Gross v. Simanonok, 78-1502
| Decision Date | 29 November 1978 |
| Docket Number | No. 78-1502,78-1502 |
| Citation | 366 So.2d 47 |
| Parties | Margaret GROSS, Appellant, v. Joseph E. SIMANONOK, Appellee. |
| Court | Florida District Court of Appeals |
W. Daniel Kearney of Kearney & Mulock, Bradenton, for appellant.
Joseph E. Simanonok, pro se.
Appellant/defendant Margaret Gross challenges the trial court's order vacating a final summary judgment entered in her favor. We hold that the trial court was without authority to vacate the judgment, and therefore we reverse.
On July 10, 1978, appellee/plaintiff Simanonok filed a motion to vacate the final summary judgment entered in this case on December 8, 1975. In the 1975 judgment the court had refused to enforce a contract for sale of Gross' homestead to Simanonok because the contract had not been witnessed by two persons. No appeal was taken from the judgment. In his 1978 motion to vacate Simanonok sought to have the judgment vacated on two grounds. First, he contended that since this court held in Carroll v. Dougherty, 355 So.2d 843 (Fla. 2d DCA 1978) that it is not necessary to have witnesses to contracts to convey homestead property, the order granting summary judgment was erroneous. Second, he alleged that Gross had misrepresented to the trial court before the summary judgment was entered that she intended to retain her homestead, when, in fact, she sought to avoid the contract with Simanonok in order to sell her property to a third party.
Gross moved to strike the motion to vacate, arguing that this court's holding in Carroll, rendered subsequent to the summary judgment, afforded no grounds to vacate that judgment. On July 27, 1978, the trial judge granted Simanonok's motion to vacate. This timely interlocutory appeal by Gross ensued with a cross-appeal by Simanonok.
Although Carroll v. Dougherty, supra, is now the law in Florida, the 1975 judgment, not having been timely appealed, became res judicata. A mistaken view of the law is a judicial error as distinguished from "mistake, inadvertence, surprise, or excusable neglect" and is therefore not one of the circumstances contemplated in Fla.R.Civ.P. 1.540 under which final judgments may be set aside. Fiber Crete Homes, Inc. v. Division of Administration, Department of Transportation, 315 So.2d 492 (Fla. 4th DCA 1975). Moreover, Simanonok's allegation of misrepresentation is refuted by the record which was before the trial court on entry of final summary judgment. Therefore, Simanonok...
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State ex rel. Schwartz v. Lantz, 82-739
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Duckworth v. Duckworth, 81-2018
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Schrank v. State Farm Mut. Auto. Ins. Co., s. 81-1681
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