Shields v. Flinn, 86-1733

Decision Date19 July 1988
Docket NumberNo. 86-1733,86-1733
Citation528 So.2d 967,13 Fla. L. Weekly 1710
Parties13 Fla. L. Weekly 1710 Karen SHIELDS, Appellant, v. Gene FLINN, Appellee.
CourtFlorida District Court of Appeals

Womack, Lombana & Bass, Greer, Homer, Cope & Bonner and Gerald Cope, Dunn, Dresnick, Lodish & Miller, Miami, for appellant.

Gene Flinn, in pro. per.

Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.

ON MOTION FOR REHEARING

PER CURIAM.

This is an appeal from an order denying a motion for post-judgment relief filed pursuant to Florida Rule of Civil Procedure 1.540(b). In motions before the trial court, the defendant, Karen Shields, had requested relief from the final judgment awarding damages as well as from an interlocutory order finding her liable to plaintiff Gene Flinn. In our original opinion, we addressed the denial of both motions. We have entertained rehearing in this matter to determine the proper scope of review in such a proceeding. Nevertheless, we deny the motion having determined that our scope of review must be addressed solely to the grant or denial of the motion per se rather than the merits of the underlying final judgment or any antecedent order. However, in light of the motion for rehearing, we vacate our opinion filed October 27, 1987 and replace it with the following:

Karen Shields appeals from an order denying her motion for relief from judgment. We reverse.

Gene Flinn sued Shields for slander, libel per se and defamation of character in connection with a complaint which Shields filed with the Equal Employment Opportunity Commission charging Flinn with sexual harassment during the time Shields was in his employ. A partial summary judgment on the issue of liability was entered against Shields on October 16, 1981. The trial on the issue of damages was originally set for November 1981, but was rescheduled and held on December 18, 1981. Shields did not appear for the trial either personally or through counsel. The record does not indicate whether notice of the trial date was ever given as required by Florida Rule of Civil Procedure 1.440(c). The trial proceeded and the trial court entered judgment against Shields in the amount of $50,000.

Approximately two years after the entry of the final judgment, Shields filed a motion for relief from the partial summary judgment and the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(4) claiming that the judgments were void. The trial court denied the motion at an unreported hearing. In a subsequent order, the trial court reconstructed the proceeding and stated that Shields "did not receive notice of the trial of this case, and was not at the trial in person or by counsel." The order also stated that the Shields motion had been denied because it had not been "filed within a reasonable time, within the meaning of rule 1.540." Shields seeks relief from the order denying relief from judgment.

Although the motion requested relief from both the partial summary judgment adjudicating liability and the final judgment awarding damages, rule 1.540 provides for the review of final judgments, orders, and decrees only. Consequently, the only judgment from which the trial court could have granted relief was the final judgment. The order denying relief is a post-judgment, interlocutory order. The review of such an order does not include the merits of the final decree sought to be vacated or any other...

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48 cases
  • Security Bank, N.A. v. BellSouth Advertising & Pub. Corp.
    • United States
    • Florida District Court of Appeals
    • July 24, 1996
    ...on liability, defendant was not given notice of trial on damages under Florida Rule of Civil Procedure 1.440(c). Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988). Accord Williams v. Direct Dispensing, Inc., 630 So.2d 1195, 1196-97 (Fla. 3d DCA 1994) (granting 1.540 relief); Tand v. C......
  • Sterling Factors v. U.S. Bank Nat. Ass'n
    • United States
    • Florida District Court of Appeals
    • November 2, 2007
    ...to rule 1.540(b)(1), (2), or (3). In support of its argument that the foreclosure judgment is void, Sterling cites Shields v. Flinn, 528 So.2d 967 (Fla. 3d DCA 1988). In Shields, the Third District declared a judgment void two years after the entry of the judgment because the defendant, ove......
  • Castro v. Charter Club, Inc.
    • United States
    • Florida District Court of Appeals
    • June 5, 2013
    ...for abuse of discretion. Rodriguez–Faro v. M. Escarda Contractor, Inc., 69 So.3d 1097, 1098 (Fla. 3d DCA 2011); Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988). In reviewing a trial court's order denying a motion to vacate, the court's sole concern is whether the trial court abused ......
  • Viets v. Arei
    • United States
    • Florida District Court of Appeals
    • March 22, 2006
    ...Rule 1.540(b)(4) provides relief from void judgments. Relief from a void judgment may be granted at any time. See Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988); Kennedy v. Richmond, 512 So.2d 1129, 1130 (Fla. 4th DCA 1987); Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So.2d 7......
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1 books & journal articles
  • Appellate standards of review.
    • United States
    • Florida Bar Journal Vol. 73 No. 11, December - December 1999
    • December 1, 1999
    ...rev. denied, 411 So. 2d 384 (Fla. 1981). 3) vacating judgment pursuant to Florida Rule of Civil Procedure 1.540, see Shields v. Fiinn, 528 So. 2d 967 (Fla. 3d DCA 1988); California Club Ins. Co. v. Lucca, 517 So. 2d 72 (Fla. 3d DCA 4) awarding costs, see Goslin v. Racal Data Communications,......

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