Malicoat v. LaChappelle, 79-1944
| Decision Date | 26 November 1980 |
| Docket Number | No. 79-1944,79-1944 |
| Parties | Donald L. MALICOAT and Bettye J. Malicoat, his wife, Appellants, v. Andre LaCHAPPELLE and Francine LaChappelle, his wife, Appellees. |
| Court | Florida District Court of Appeals |
James L. Kershaw, Fort Lauderdale, for appellants.
Philip J. Gouze, Fort Lauderdale, for appellees.
Appellants sued appellees and others to recover a deposit made pursuant to a contract to purchase a parcel of realty. A default was entered against appellees, and in due course final judgment for appellants was entered. Approximately sixty days later appellees filed a motion to set aside the default judgment. A hearing was held on said motion and an order was entered on February 19, 1979, denying the motion "because of insufficient evidence."
On March 20, 1979, appellees filed a motion to correct the order of February 19, 1979, on the grounds that the motion to set aside the default was not denied for insufficient evidence but rather because 1) the motion sought to set aside the default without also seeking to vacate the final judgment and 2) appellants' counsel objected to counsel for appellees testifying because he was an attorney of record. The motion also contended that the matter had simply been continued over until appellees could get new counsel and amend its motion. This motion to correct was never ruled on, as far as the record reflects. Instead, on April 19, 1979, appellees filed a new motion to set aside the default and final judgment on virtually the same grounds as the original motion. Appellants contended the subject matter of said motion was vulnerable to the defenses of res judicata and estoppel by judgment. However, the trial court held a hearing on this motion and entered an order granting the motion to set aside the default and final judgment. That order is the subject of this appeal. See Florida Rules of Appellate Procedure 9.130(a)(5).
Appellants seek reversal on three grounds, the first of which is that the entry of the February 19, 1979, order barred the trial judge from proceeding with the April 19, 1979, motion.
Appellees contend that the transcript of the hearing on the first motion to set aside the default judgment clearly demonstrates that the trial judge intended to allow appellees to amend their motion to set aside the default and vacate the final judgment; we agree that the trial judge did indicate that at the hearing. However, he subsequently entered the order of February 19, 1979, which, by denying the motion because of insufficient evidence, ruled on the merits of the first motion to vacate the default judgment and was therefore a final order. Odum v. Morningstar, 158 So.2d 776 (Fla. 2d DCA 1963). No appeal was taken therefrom, and thus the question that order disposed of became settled. Appellees' motion to correct the order of February 19, 1979, was untimely (Florida Rules of Civil Procedure 1.530(g)) and was never heard, so that motion is of no avail to appellees. In our judgment the issues raised in the motion of April 19,...
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