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Richard - Bizlaw
Richard - Bizlaw, Attorney
Category: Business Law
Satisfied Customers: 8819
Experience:  30 years of corporate, litigation and international law
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We had a final judgment entered against my wife for vacating

Customer Question

We had a final judgment entered against my wife for vacating a commercial space a little over a year ago. Final amount was for $110k. In their motion for summary judgment, the attorney for the landlord said that they had NOT rented the space. This is not accurate. I am trying to dig further, but a Jackson Hewitt Tax prep company took our spot around the same time the judgment was entered.

Is there anything I can do to vacate the judgment and have the balance reduced to appropriate amounts?

If it matters, we did NOT respond to any of the subsequent motions by the attorney. We only responded to the initial summons.
Submitted: 1 year ago.
Category: Business Law
Expert:  Richard - Bizlaw replied 1 year ago.
Hello, I will try to help you. Please remember I just report or interpret the law, so the outcome may not be what you hoped for. Did the judgment include future rent that included the period the new tenant took possession?
Customer: replied 1 year ago.


Understood.


 


The judgment included 'lost rent' through 2015, tenant moved in in the last few months.


 


It sat vacant for around 14 months, so 14 x 2670 + interest + atty fees should have equaled less than $50k. They arrived at $110k +/-.

Expert:  Richard - Bizlaw replied 1 year ago.
Let me clarify my question. From your post the rental occurred prior to entry of judgment correct? The landlord represented that the property was not rented, is that correct? The judgment that was entered assumed that the property would not be re-rented to a new tenant before the expiration of the lease your wife originally signed, is that correct?
Customer: replied 1 year ago.


Correct. Judgment states that they could NOT rent the property, that they had been trying repetedly and there were no 'bites'.

Customer: replied 1 year ago.


He has an affidavit dated 6/19/13 stating that 'as of the date of this affidavit, unit has NOT been rented'.


 


It was mailed to us on the 27th of June.


 


Now somewhere between 6/19 and a few weeks ago, the property was rented, for sure.


 


 

Expert:  Richard - Bizlaw replied 1 year ago.
It is critical that the rental be before the entry of final judgment. If so you can move to amend the judgment to reduce the judgment by the amount to be collected under the new lease. Even if the rental occurred after the judgment and you did not appeal it, I would still make the motion to amend based on mistake because they were able to rent it and if the judgment stands it would unjustly enrich the landlord. The motion would be made under rule 1.540(b) of the rules of civil procedure. Here is the text of the rule.

On motion and upon such terms as are just, the court may relieve a party or a party‘s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power May 20, 2013 Florida Rules of Civil Procedure 114of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court

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Customer: replied 1 year ago.

What if the executed lease was shortly thereafter, could I petition the court to allow me access to communications between their new tenant and the landlords to establish if they intentionally delayed reletting the unit? Assuming I were to take this up on appeals of course. Since the summary final judgment was entered on July 24th... if I can show that the unit was rented PRIOR to that, I would be able entitled to.......?


 


Amending the judgment?


Having judgment thrown out requiring them to refile all of their motions?


 


Thanks for the help. No more questions on this I promise.

Expert:  Richard - Bizlaw replied 1 year ago.
You want to make the motion to modify the judgment under the rule I cited and you want to appeal. I would take the position that even if the rental was after the judgment the judgment should still be modified. If it was rented before the judgment, then you would argue that the landlord was under an obligation to inform the court of the changed facts. You will only get the judgment reduced to reflect the rental income he will receive from the new tenant. They will not through the judgment out. It is critical that you make the motion first so that if you file the appeal later while the motion is pending you can reference that motion in the appeal and if the motion is denied amend you appeal to include denial of the motion. You are too late to make the motion such that it will stop the time you have to appeal.

You can ask the court as part of the motion to get discovery on when the lease occurred and when the discussions about it began.

If I have answered all your questions, please rate my answer excellent as that is how I am compensated. If you have more questions, please let me know. If the answer was especially helpful you can provide a bonus.
Richard - Bizlaw, Attorney
Category: Business Law
Satisfied Customers: 8819
Experience: 30 years of corporate, litigation and international law
Richard - Bizlaw and 5 other Business Law Specialists are ready to help you
Expert:  Richard - Bizlaw replied 1 year ago.
Hi I was just following up to see how you made out. If you have any additional questions or I can help on a different topic let me know.

Bizlaw

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