HARVEY GORDON, INC. v. TESTA, 413 So.2d 408 (Fla.App. 3 Dist. 1982)

HARVEY GORDON, INC., A VIRGINIA CORPORATION, PETITIONER, v. THE HONORABLE THOMAS A. TESTA, AS ONE OF THE JUDGES IN THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA, AND LOUIS POLLER, GENERAL PARTNER OF LANDMARK PLAZA ASSOCIATES, RESPONDENTS.

No. 81-1707.District Court of Appeal of Florida, Third District.
March 16, 1982. Rehearing Denied May 3, 1982.

Petition from the Circuit Court, Dade County, Thomas A. Testa, J.

Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel Wolff and Stanley H. Wakshlag and Alan T. Dimond, Miami, for petitioner.

Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for respondents.

Greenfield DuVal, North Miami, for Louis Poller, as amicus curiae.

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

ON REHEARING
PER CURIAM.

In an action to enforce a foreign judgment, the trial court may not entertain a counterclaim based on perjured testimony in support of the judgment. See, e.g., Haas v. Haas, 59 So.2d 640
(Fla. 1952); Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.2d 514
(1946); City of Miami v. Coconut Grove Marine Properties, Inc., 358 So.2d 1151 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 932
(Fla. 1979).

We treat the Petition for writ of prohibition as certiorari and grant same on a finding that the action of the trial court constitutes a departure from the essential requirements of the law.

The order under review is quashed and the cause is remanded with instructions

Page 409

that the court not consider the defenses or counterclaim asserted except the defense which challenges the finality of the judgment sought to be enforced.