Falkner v. Amerifirst Federal Savings & Loan Ass'n
Falkner v. Amerifirst Federal Savings & Loan Ass'n
Opinion of the Court
The plaintiffs below appeal from a March 23, 1984 final judgment dismissing their amended complaint, filed October 23,
It appears, however, that the allegations of the plaintiffs’ November 29, 1983 motion to strike, and their sworn May 7, 1984 motion to vacate, to the effect that they had not been given notice or opportunity to be heard before the entry of the May, 1983 judgments, adequately set forth a claim — which has not been ruled upon below — that the judgments are “void” and thus should be set aside pursuant to Fla.R. Civ.P. 1.540(b)(4). See Gelkop v. Gelkop, 384 So.2d 195, 199-200 (Fla. 3d DCA 1980); Osceola Farms Co. v. Sanchez, 238 So.2d 477, 480 (Fla. 2d DCA 1970). Accordingly, the affirmance of the judgment now under review is specifically without prejudice to appropriate disposition
Affirmed, remanded.
. The order of May 5 dismissed the complaint "with prejudice;" that of May 9 did not contain these words. As Gries, infra, holds, however, the difference is irrelevant to the finality of the order.
. We express no opinion as to the factual merits of or the existence of any defenses to the plaintiffs’ right to 1.540 relief.
.Of course, if the May, 1983 judgments are set aside, the March 23, 1984 judgment, which we here affirm, will then in turn necessarily itself be vacated under Rule 1.540(b)(5) (providing for vacating judgment when judgment’ it is based upon has been vacated).
Reference
- Full Case Name
- Arthur FALKNER and Syble Falkner, his wife v. AMERIFIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, previously known as First Federal Savings and Loan Association of Miami, a United States corporation
- Cited By
- 9 cases
- Status
- Published