CEZARINA ONOFRIO, APPELLANT,
v.
RUBENS ONOFRIO, APPELLEE
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Court vacated dismissal of appeal and reinstated it, holding that an order denying a motion to set aside a void judgment is appealable under Florida Rules of Appellate Procedure rule 9.130(a)(5) because void judgment is a ground for relief under rule 1.540(b)(4).
An order denying a motion to set aside a judgment as void is an appealable non-final order under Florida Rules of Appellate Procedure rule 9.130(a)(5) because void judgment is a ground for relief under rule 1.540(b)(4).
[1] An order denying a motion to set aside a judgment as void is appealable as a non-final order under Florida Rules of Appellate Procedure rule 9.130(a)(5) because void judg…
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Join FLexlaw to unlock all legal intelligenceCezarina Onofrio filed a motion for summary judgment in an action to set aside a judgment as void. The trial court denied the motion, and Onofrio appe…
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PER CURIAM.
We grant appellant’s motion for clarification of our order dismissing her appeal, vacate the dismissal, and reinstate the appeal.
Cezarina Onofrio moved for summary judgment pursuant to rule 1.510, Florida Rules of Civil Procedure, in her action to set aside a judgment as void. The trial court denied her motion, and she appealed. This court concluded that the order appealed was not an appealable non-final order, and dismissed the appeal. Onofrio sought clarification, urging that although her motion requested summary judgment pursuant to rule 1.510, Florida Rules of Civil Procedure, the ground on which it was predicated was that the underlying judgment was void, and thus the judgment was an appealable, non-final order under rule 9.130(a)(5), Florida Rules of Appellate Procedure, as an order entered on motion pursuant to rule 1.540, Florida Rules of Civil Procedure. The committee note to rule 9.130(a)(5), Florida Rules of Appellate Pro cedure, states that the rule applies to orders on motions which enumerate any of the grounds set forth in rule 1.540, Florida Rules of Civil Procedure. Because a void judgment is a ground for relief from judgment pursuant to rule 1.540(b)(4), Florida Rules of Civil Procedure, we reinstate the appeal.
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Albano v. Albano, 579 So. 2d 757 (Fla. 5th DCA 1991)…, Florida Rules of Appellate Procedure. Although the March 8, 1990, order was characterized as one granting summary judgment and dismissing the motion for relief from judgment, what it did was to dispose of the 1.540 motion. See Onofrio v. Onofrio, 561 So. 2d 1200 (Fla. 3d DCA 1990) (Order denying motion which requested summary judgment pursuant to rule 1.510, Florida Rules of Civil Procedure, was appealable because ground of motion was that final judgment was void, and therefore order denying motion was appe…
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Cezarina Onofrio v. Rubens Onofrio, 564 So. 2d 1215 (Fla. 3d DCA 1990)