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Atlas v. City of Pembroke Pines

District Court of Appeal of Florida, Fourth District
Dec 28, 1983
441 So. 2d 652 (Fla. Dist. Ct. App. 1983)

Opinion

No. 82-1434.

September 28, 1983. Rehearing Denied December 28, 1983.

Appeal from the Circuit Court for Broward County, Joseph E. Price, Jr., J.

Phillip Michael Cullen, III, Fort Lauderdale, for appellant.

Steven L. Josias of Josias and Goren, Fort Lauderdale, for appellee.


A default and final judgment were entered against the City of Pembroke Pines. Thereafter, the city filed a motion for relief from judgment, pursuant to Rule 1.540(b), Fla.R.Civ.P., which alleged that the judgment was void due to defective service of process. The motion was denied. Rather than appeal, the city filed a second, more elaborate motion for relief from judgment which reasserted the same grounds set forth in the first motion. The second motion was granted and this appeal ensued. We reverse.

A trial court is without jurisdiction to entertain a second motion for relief from judgment which attempts to relitigate matters settled by a prior order denying relief. Malicoat v. LaChappelle, 390 So.2d 481 (Fla. 4th DCA 1980); Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971). The city attempts to distinguish this case from Malicoat and Perkins by contending that its second motion — though not styled as such — was actually a motion for rehearing. Thus, it claims not to have taken the impermissible "second bite." We do not agree. First, the motion's substance and form do not comport with a motion for rehearing. But more importantly, an order denying a motion for relief from judgment, pursuant to Rule 1.540(b), Fla.R.Civ.P., is not subject to a motion for rehearing. Potucek v. Smeja, 419 So.2d 1192 (Fla. 2d DCA 1982).

Accordingly, the order granting relief from judgment is

REVERSED.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.


Summaries of

Atlas v. City of Pembroke Pines

District Court of Appeal of Florida, Fourth District
Dec 28, 1983
441 So. 2d 652 (Fla. Dist. Ct. App. 1983)
Case details for

Atlas v. City of Pembroke Pines

Case Details

Full title:BONNIE ATLAS, APPELLANT, v. CITY OF PEMBROKE PINES, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Dec 28, 1983

Citations

441 So. 2d 652 (Fla. Dist. Ct. App. 1983)

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