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Author Topic: Relief from Judgment: 1.540(b)  (Read 22966 times)
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« on: December 08, 2006, 12:30:55 PM »

Relief from Judgment  §13.8
Padavano Florida Civil Practice Volume 5 2004-2005 Edition


 13.8 Relief from Judgments

There are two general methods of applying to the trial court for relief from a final order or judgment.

The first of these is to file a motion under rule 1.540 Fla.R.Civ.P. in the case in which judgment was entered and

The second is to file an independent civil action challenging the judgment.


Postjudgment relief is available by motion in a variety of circumstances.

Rule 1.540(a) authorizes the court to correct clerical mistakes in a judgment

and rule 1.540(b) lists five categories of substantive grounds that can be used to support and order vacating a judgment.

A party can file an independent action to challenge a final judgment but only on the ground of extrinsic fraud.

This section contains a discussion of these and other subjects relating to post-judgment relief in the trial court.

Rule 1.540 offers the parties a limited opportunity to seek relief from a final judgment  by filing a motion in the trial court.

1. Postjudgment Relief.

Rule 1.540 offers the parties a limited opportunity to seek relief from a final order or judgment.
The remedy is not intended as a substitute for an appeal.
See Curbelo v. Ullman, 571 So.2d 443 (Fla. 1990);
Gale v. Blake, 745 So.2d 518 (Fla. 3rd DCA 1999);
Beal Bank, S.S.B., Inc. v. Sherwin, 829 So.2d 961 (Fla. 4th DCA 2002);
Tucker v. Ohren, 739 So.2d 684 (Fla. 4th DCA 1999);
Holm v. Demetree, 681 So.2d 868 (Fla. 5th DCA 1996)
The remedy afforded by rule 1.540 applies only to final judgments. See Kozich v. DeBrino, 837 So.2d 1041 (Fla. 4th DCA 2002) (holding that rule 1.540(b) provides no basis for relief from a nonfinal order);
Bell v. Broward County Personnel Review Bd., 691 So.2d 514 (Fla. 4th DCA 1997)
Bruno v. A.E. Handy & Associates, Inc., 787 So.2d 251 (Fla. 5th DCA 2001).
However, the remedy is not a substitute for an appeal.

Clerical errors can be corrected only by filing a motion under the procedure outlined in rule 1.540(a), and substantive defects may be cured only by filing a timely motion alleging one of the grounds listed in rule 1.540(b).

The purpose of subdivision (b) of the rule is to enable the parties to obtain relief from an order or judgment that is unjust and the courts are obligated to construe the rule liberally to achieve this objective.
2. Purpose. The purpose of rule 1.540(b) is to enable the parties to obtain relief from an order or judgment that is unjust.
See Smith v. Frank Griffin Volkswagen Inc., 645 So.2d 585 (Fla. 1st DCA 1994).

Nevertheless, the trial judge is authorized to vacate a judgment only in the limited circumstances defined by the rule.

The trial judge has authority under rule 1.540(a) to correct a clerical mistake in a final judgment. By the terms of this rule, the court may correct a clerical mistake on its own initiative or on the motion of a party.
3. Authority. The court has authority to correct a clerical mistake on its own initiative or on the motion of a party.
See Fla.R.Civ.P. 1.540(a);
Clearwater Oaks Bank v. Plumtree, 477 So.2d 1023 (Fla. 2nd DCA 1985);
Mocegui v. Public Service Mut. Ins. Co., 821 So.2d 1189 (Fla. 3rd DCA 2002);
Department of Envtl. Regulation v. Apelgren, 611 So.2d 72 (Fla. 4th DCA 1992).

Although it would be proper to conduct a hearing, the court has discretion to correct a clerical mistake in a judgment without a hearing and without notice to the parties. However, the court’s authority under rule 1.540(a) is limited to the correction of clerical mistakes.

An error that affects the nature of the adjudication may only be corrected on appeal or by a motion to vacate under rule 1.540(b).

A clerical mistake is one that is committed through oversight or omission.
4 Definition. A clerical error is one that is committed through oversight or omission.
See Bird Lakes Dev. Corp. v. Meruelo, 582 So.2d 119 (Fla. 3rd DCA 1991) (as a result of a mathematical error, the judgment did not reflect the decision actually made by the court.)
In Ventriglia v. Vaughan, 623 So.2d 836 (Fla. 2nd DCA 1993), the court distinguished clerical errors from judicial errors. The court explained that a judicial error is one that affects the substance of the order or judgment.
See also Department of Revenue ex rel. Thomas v. Thomas, 675 So.2d 1024 (Fla. 1st DCA 1996);
Clearwater Oaks Bank v. Plumtree, 477 So.2d 1023 (Fla. 2nd DCA 1985).

In contrast, a judicial error is one that is brought about by an intentional but incorrect judicial act. The trial judge has no authority to make a substantive change in a final judgment in the guise of correcting a clerical error.
If the mistake is one that has a material effect on the matter in controversy, then it cannot be regarded as a clerical mistake.
For example, the courts have held that a mistake in the application of the law is not a clerical error.
5 Mistake of Law. A mistake in the application of the law is not a clerical error and, therefore, is not subject to correction under rule 1.540(a)
See Curbelo v. Ullman, 571 So.2d 443 (Fla. 1990);
Allstate Ins. Co. v. Ramjit, 788 So.2d 402 (Fla. 3rd DCA 2001);
Tucker v. Ohren, 739 So.2d 684 (Fla. 4th DCA 1999);
Harrison v. La Placida Community Ass’n, Inc., 665 So.2d 1138 (Fla. 4th DCA 1996).

Errors of law affect the substance of the decision and not merely the form or order by which the decision is made.
Likewise, the courts have held that an error that affects the nature of the decision is not a clerical error.
6. Nature of Judgment.
An error that results in a material change in the judgment is not a clerical error.
See Department of Envtl. Regulation v. Apelgren, 611 So.2d 72 (Fla. 4th DCA 1992);
See also Dolin v. Dolin, 654 So.2d 223 (Fla. 5th DCA 1995) (the trial judge attempted to change the nature of the final order from indirect criminal contempt to civil contempt);
Gulfstream Micro Sys., Inc. v. Kingbridge Boca Assocs., 564 So.2d 554(Fla. 4th DCA 1990) (the proposed amendment to the judgment substantially changed its impact and effect);
Freeman v. Sanders, 562 So.2d 834 (Fla. 1st DCA 1990) (the error affected the substantial terms of the dismissal).

Rule 1.540(a) is limited in one other respect and that it applies only to errors of the court. If the trial judge intended to sign the order as written but it is incorrect because counsel inadvertently provided the wrong information, the order is not subject to correction on the ground that it contains a clerical error.
7. Errors of counsel.
Rule 1.540(a) cannot be used to correct errors or omissions of counsel resulting in an order that does not accurately reflect the decision of the court.
See Huffman v. Huffman, 596 So.2d 718 (Fla. 2nd DCA 1992).

The importance of the distinction between clerical and judicial mistakes is that the court’s ability to correct a clerical mistake is not subject to a time limit. Rule 1.540(a) provides that the court may correct a clerical mistake at any time after the judgment.
8. No Time Limit
The court can correct a clerical error in a judgment under rule 1.540(a) at any time after rendition of the judgment.
See DiPiazza v. Palm Beach Mall, Inc., 722 So.2d 831 (Fla. 2nd DCA 1998).

In contrast, rule 1.540(b) sets a one-year time limit for vacating a judgment on the first three sets of grounds for vacating a judgment.

The trial  judge also has authority to correct a clerical mistake in a final judgment even after the judgment is appealed. Rule 1.540(a) states that if the record has not yet been docketed in the appellate court, the trial judge may correct a clerical mistake in the judgment as a matter of course. If the record has already been docketed in the appellate court, the trial court may correct a clerical mistake in the final judgment with leave of the appellate court.

Rule 1.540(b) provides that the court has authority to vacate a final order or judgment on the motion of a party on a showing of any of the following grounds: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) that the judgment is void; and (5) that the judgment has been satisfied, released, or discharged or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. These grounds are discussed below in the order they are listed here.

The first category of grounds upon which the court may enter an order vacating a final order or judgment includes mistake, inadvertence, surprise, or excusable neglect.
9. Mistake
A final order can be vacated on a timely motion alleging mistake, inadvertence, surprise or excusable neglect.
See Everett v. Florida Transp. Servs., Inc., 744 So.2d 1038 (Fla. 4th DCA 1999)) (reversing the denial of a rule 1.540(b) motion and vacating an earlier judgment holding that the action was barred by the statute of limitations, because the complaint contained an error as to the date of injury);
Lee & Sakahara Assocs., AIA, Inc. v. Boykin Management Co., 678 So.2d 394 (Fla. 4th DCA 1996);
Freeman v. Sanders, 562 So.2d 834 (Fla. 1st  DCA 1990).
The fact that a known injury is more serious than expected is not a mistake.
See Sponga v. Warro, 698 So.2d 621 (Fla. 5th DCA 1997).
Likewise, relief is not available under the rule merely because the moving party committed a tactical error in the original proceeding.
See Johnson v. Johnson, 738 So.2d 508 (Fla. 1st DCA 1999).
Nor does the rule authorize relief where the moving party has suffered prejudice as a result of his own inaction or lack of diligence.
See Allstate Ins. Co. v. Gulisano, 722 So.2d 216 (fla. 2nd DCA 1998);
Cueto v. Manufacturers & Traders Trust Co., 791 So.2d 1125 (Fla. 4th DCA 2000);
Dunfine Florida, Inc. v. Golden Gate Dev. Corp., 796 So.2d 1241 (Fla. 5th DCA 2001).
   
As these terms are used in rule 1.540(b), they refer to errors and omissions that affect the decision of the court and not merely the form or wording of the order that is used to convey the decision.
A judgment obtained because a party did not appear at the trial or hearing can be vacated if the failure to appear was excusable.
10 Failure to Appear.
A mistake as to the time or place of a hearing may amount to excusable neglect under rule 1.540(b).
See Debello v. Faske, 668 So.2d 324 (Fla. 3rd DCA 1996)(the defendant’s failure to attend the trial was excusable because it was caused by a failure of communication);
Heller v. Geneco, Inc., 661 So.2d 950 (Fla. 4th DCA 1995) (the moving party was present in court but because of his unfamiliarity with the local procedure he was not present in the judge’s chambers);
Wilson v. Woodward, 602 So.2d 547 (Fla. 2nd DCA 1992)(the secretary for the moving party’s lawyer failed to calendar the hearing).

For example, if a party appeared at the courthouse at the proper time and place but in the wrong courtroom, the trial judge would likely find that the failure to appear resulted from excusable neglect. Likewise, a secretarial error in failing to set a hearing on the calendar could amount to excusable neglect. Other errors affecting the substance of the decision may amount to excusable neglect. If a party intends to dismiss a case without prejudice but files a notice of voluntary dismissal with prejudice, the resulting error is one that affects the substance of the final judgment entered by the court and relief is available only by filing a timely motion under rule 1.540(b).

Newly discovered evidence is listed in the second category of grounds that can be asseted in support of a motion to vacate a final order or judgment. Rule 1.540(b) limits the use of newly discovered evidence by defining it as evidence “which by due diligence could not have been discovered in time to move for a new trial or rehearing.”
11. Newly Discovered Evidence.
A motion under rule 1.540(b) can be based on the fact that the moving party has discovered new evidence that was not known at the time of the verdict or judgment.
Newly discovered evidence claims apply to cases that are tried, and not to those settled by agreement or mediation.
See Sponga v. Warro, 698 So.2d 621 (Fla. 5th DCA 1997)
Claims of newly discovered evidence are disfavored and thus the moving party has the burden of showing the exercise of due diligence.
See Brown v. McMillian, 737 So.2d 570 (Fla. 1st DCA 1999);
Junda v. Diez, 848 So.2d 457 (Fla. 4th DCA 2003).

By this definition, the failure to assert a claim of newly discovered evidence that was known before the expiration of the time for service of a motion for new trial is a waiver of the right to assert the claim in a post judgment motion under rule 1.540(b). The newly discovered evidence must be material to the issues in the case and there must be at least a reasonable probability it would have changed the result.

The third category of grounds for vacating a final order or judgment includes fraud, misrepresentation, or other misconduct of an adverse party.
As explained in rule 1.540(b), it is proper to allege either intrinsic fraud or extrinsic fraud.
12 Fraud.
Rule 1.540(b) authorizes the court to vacate a judgment on the ground of fraud or misrepresentation.
See Shienvold v. Habie, 627 So.2d 1203 (Fla. 4th DCA 1993).
The motion must allege the circumstances with particularity.
See Hembd v. Dauria, 859 So.2d 1238 (Fla. 4th DCA 2003);
Flemenbaum v. Flemenbaum, 636 So.2d 579 (Fla. 4th DCA 1994).

It is well recognized that a claim of fraud must be alleged with particularity.
While this principle is most often applied to a complaint, counterclaim, or crossclaim, it also applies to a motion to vacate a judgment.
A party moving to vacate a final order or judgment on the ground of fraud must allege the circumstances constituting the fraud with particularity.
Among other things, this requirement enables the court to determine whether it is necessary to conduct an evidentiary hearing on the motion.

A motion to vacate a final order or judgment on any grounds identified in the first three categories listed in rule 1.540(b) is subject to a time limit. A motion to vacate a judgment based on one of these grounds must be filed within one year of the date the judgment was rendered.
13. Time Limit.
A motion to vacate a judgment based on mistake, inadvertence, surprise, or excusable neglect must be filed within one year of the judgment.
See Fla.R.Civ.P. 1.540(b);
Stembridge v. Preferred Risk Mut. Ins. Co. of Iowa, 778 So.2d 995 (Fla. 3rd DCA 1998);
Gulfstream Micro Sys., Inc. v. Kingbridge Boca Assocs., 564 So.2d 554 (Fla. 4th DCA 1990) (a motion based on mistake or excusable neglect was untimely);
Wright v. Scott, 658 So.2d 1215 (Fla. 1st  DCA 1995) (the court lacked jurisdiction to correct a final judgment to add a party because the motion has been filed more than one year after the judgment).
A claim of intrinsic fraud likewise must be presented within one year of the judgment.
See Department of Revenue v. Stone, 707 So.2d 925 (Fla. 4th DCA 1998).
See also Champion v. McDaniel, 740 So.2d 17 (Fla. 1st DCA 1999) (noting that a motion for relief from judgment in a marriage dissolution case must be made within one year unless the motion alleges a fraud on the court or in a financial affidavit.);
State v. Kunhardt, 711 So.2d 247 (Fa. 3rd DCA 1998) (absent a showing of fraud on the court, the trial court lacks jurisdiction to vacate a judgment more than one year after rendition of the judgment.).
The time runs from the entry of the order and is not tolled by the filing of an appeal.
See In re Guardianship of Schiavo, 792 So.2d 551 (Fla. 2nd DCA 2001).

If the motion is untimely, the trial court lacks jurisdiction to grant relief. The remaining categories of grounds set out in the rule include fundamental defects that can be corrected at any time after the judgment is entered.

While a motion to vacate a judgment on the ground of intrinsic fraud is ordinarily subject to a one year time limit, there is an exception to this rule. Rule 12.540 of the Florida Family Law Rules of Procedure provides that rule 1.540 shall apply to motions for relief from judgment “except that there shall be no time limit for motions based on fraudulent financial affidavits in marital or paternity cases.”  
This exception was originally adopted in 1992 as a part of rule 1.540 and it applies prospectively to judgments rendered after 1992.
14 Prospective Application.
The exception removing the one-year limit for cases of fraud in financial affidavits in marital and paternity cases applies prospectively to judgments rendered after 1992.
See Natkow v. Natkow, 696 So.2d 315 (Fla. 1997).

A party has a right to be relieved from a judgment that is void. Void judgments are included in the fourth category of grounds referred to in rule 1.540(b) Unlike the grounds listed in the first three categories set out in this rule, this ground is not subject to a time limit. It is a well established principle that a judgment entered without notice is void. Therefore, a party who did not receive notice of the proceeding in which the judgment was entered may file a motion under rule 1.540(b) to have the judgment set aside on the ground that it is void for lack of service.
15 Void Judgments.
Rule 1.540(b) provides that a party may file a motion to set aside a judgment on the ground that it is void.
A motion based on this ground is not subject to a time limit.
See M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079 (Fla. 4th DCA 2000);
Rinas v. Rinas, 847 So.2d 555 (Fla. 5th DCA 2003);
Greisel v. Gregg, 733 So.2d 1119 (Fla. 5th DCA 1999);
Linn-Well Dev. Corp. v. Preston & Farley, Inc., 710 So.2d 578 (Fla. 2nd DCA 1998) (a judgment without notice is void and may be corrected at any time);
Polani v. Payne, 654 So.2d 202 (Fla. 4th DCA 1995) (the court had jurisdiction to vacate a judgment under rule 1.540(b) even though the motion was filed almost two years after the judgment because the moving party did not receive notice of the trial.).




Likewise, the absence of personal jurisdiction renders a judgment void. If service of process was insufficient or if the court lacked personal jurisdiction for some other reason, the judgment is void and court must grant relief under rule 1.540(b)
16 Personal Jurisdiction.
A judgment can be vacated under rule 1.540(b) on the ground that it is void if the court did not acquire personal jurisdiction over the defendant.
See Kennedy v. Alberto, 649 So.2d 286 (Fla. 4th DCA 1995).

The fifth category of grounds contained in rule 1.540(b) consists of a collection of equitable reasons for avoiding the enforcement of a judgment. The rule provides that a party may move to vacate a judgment if the judgment has been satisfied, released, or discharged or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. While the rule does not purport to define the circumstances in which it would be unfair to enforce a judgment, it is clear that such a claim must be based on facts that did not exist when the judgment was rendered. The rule states that the motion must be based on a claim that it is no longer equitable that the judgment should have prospective application and that language implies that there must have been a material development after the judgment was rendered.
17 Equitable Grounds
The court has authority to vacate a judgment under rule 1.540(b) if it would no longer be equitable to give the judgment prospective effect.
See In re Guardianship of Schiavo, 792 So2d 551 (Fla. 2nd DCA 2001);
Smith v. Frank Griffin Volkswagen Inc., 645 So.2d 585 (Fla.1st DCA 1994);
Cutler Ridge Corp. v. Green Springs, Inc., 249 So.2d 91 (Fla. 3rd DCA 1971).
The trial court has discretion to grant relief on the ground that a judgment is no longer equitable to enforce a judgment. See In re Guardianship of Schiavo, 851 So.2d 182 (Fla. 2nd DCA 2003).

As with a claim that the judgment is void, a motion to vacate based on a ground contained within this final category is not subject to a time limit.
The motion may be filed at any time after the entry of the judgment.

The proper method of invoking rule 1.540(b) is to file a motion in the court file in which the order or judgment was originally entered.

This rule allows the moving party to serve the motion on the parties of record under rule 1.080 as a subsequent pleading and without the need to obtain new process.
A postjudgment motion must comply with the requirements of form that apply to all court papers, and it must also meet the general requirements of form and content that apply to all motions, as set forth in rule 1.100(b).
18 Motion
A motion to vacate a final order or judgment must meet the general requirements of form for all court papers and the specific requirements that apply to all motions.
See Fla.R.Civ.P. 1.100(c ); Fla.R.Civ.P. 1.100(b), respectively.
Forms: DeFoor & Schultz, Florida Civil Procedure Forms §§ 540.4-540.9  (1989) (motions to vacate)

If the motion is based on facts that are not a matter of record in the proceedings before the court, the moving party must also submit a sworn statement of the facts.
19 Verification
The material facts necessary to support a rule 1.540(b) motion must be verified.
See Citibank, FSB v. PNC Mortgage Corp. of America, Inc., 718 So.2d 300 (Fla. 2nd DCA 1998) (holding that the trial court properly denied a rule 1.540(b) motion that was unsupported by sworn evidence);
Blimpie Capital Venture, Inc. v. Palms Plaza partners, Ltd., 636 So.2d 838 (Fla. 2nd DCA 1994);
Yu v. Weaver, 364 So.2d 539 (Fla. 4th DCA 1978).

This could take the form of a verification of the facts alleged in the motion or an affidavit submitted along with the motion. A factual basis cannot be established on the basis of representations by counsel.
The trial judge has authority to conduct an evidentiary hearing to resolve a disputed issue of fact on a motion to vacate under rule 1.540(b).
20 Evidentiary Hearing.
The trial court has authority to conduct an evidentiary hearing to resolve factual disputes in a motion to vacate a judgment. A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless it fails to allege a colorable entitlement to relief.
See In re Guardianship of Schiavo, 800 So.2d 640 (Fla. 2nd DCA 2001).
Generally, an evidentiary hearing is required if one party claims lack of notice of the hearing resulting in the judgment and the other party disputes the claim.
See power v. Grow Group, Inc., 697 So.2d 1286 (Fla. 5th DCA 1997).
Likewise, a party who pleads fraud with particularity in a motion to vacate is entitled to an evidentiary hearing .
St. Surin v. St. Surin, 684 So.2d 243 (Fla. 2nd DCA 1996);
Crowley v. Crowley, 678 So.2d 435 (Fla. 4th DCA 1996);
Compare Hembd v. Dauria, 859 So.2d 1238 (Fla. 4th DCA 2003) (holding that an evidentiary hearing is not required if the claim of fraud is not alleged with particularity).

A motion to vacate under rule 1.540(b) does not affect the finality of the judgment nor does it suspend the operation of the judgment.

Therefore, the filing of a motion to vacate does not prevent enforcement of the judgment.
The filing of a motion to vacate does not interfere with the moving party’s right to appeal.
 
Unlike the post-judgment motions listed in rule 9.020(h), a motion to vacate does not suspend rendition of the final judgment.
21 Pending Appeal
The filing of a notice of appeal is not an abandonment of a pending motion to vacate the judgment under rule 1.540(b).
See Kennedy v. Alberto, 649 So.2d 286 (Fla. 4th DCA 1995).
In Olson v. Olson, 704 So.2d 208 (Fla. 5th DCA 1998), the court treated a motion to vacate as a motion for rehearing and held that it suspended rendition of the judgment.

Thus, a party does not abandon a motion under rule 1.540(b) by filing a notice of appeal. The appeal and the motion to vacate are cumulative remedies and so they can be pursued at the same time. Of course, the trial court may determine that it would be best to stay the proceedings on the motion to vacate the judgment until after the disposition of the appeal.

If the order or judgment was obtained by a fraud on the court, the aggrieved party may also obtain relief by filing an independent action.
As explained in rule 1.540(b), the remedies available under the rule do not limit the power of a court to entertain an independent action to relieve a party from a judgment for fraud on the court.
The advantage of an independent action is that it is not governed by the one-year time limit that applies to motions under rule 1.540(b).
However, a party can file an independent action for fraud only if the conduct in question amounts to extrinsic fraud.
Claims of intrinsic fraud must be asserted in a motion to vacate the judgment filed within the one year limit set by rule 1.540(b).
As the supreme court explained in the leading case of DeClaire v. Yohanan,
“intrinsic fraud … applies to fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried.”
Whereas “extrinsic fraud occurs where a defendant has somehow been prevented from participating in a cause.”
22 Independent Action
A party can file an independent action to vacate a judgment on the gorund of fraud but that opportunity is limited to an extrinsic fraud which is sometimes described as a fraud on the court. The quotation I nthe text is from DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla. 1984)
See also Lefler v. Lefler, 776 So.2d 319 (Fla. 4th DCA 2001);
Rickard v. McKeeson, 774 So.2d 838 (Fla. 4th DCA 2000) (allegation that sham adoption was concealed in order to disinherit movant stated basis for finding extrinsic fraud);
Cerniglia v. Cerniglia, 679 So.2d 1160 (Fla. 1996);
Huffman v. Delacruz, 719 So.2d 385 (Fla. 4th DCA 1998) (holding that an attorney’s actions in settling a case without the client’s permission and forging client’s signature on the settlement checks amounts to fraud on the court);
Seiffert v. Seiffert, 702 So.2d 273 (Fla. 1st DCA 1997);
Southeast Bank, N.A. v. Almeida, 693 So.2d 1015 (Fla. 3rd DCA 1997);
Winston v. Winston, 684 So.2d 315 (Fla. 4th DCA 1996);
Zuckerman v. Alex Hofrichter, P.A., 630 So.2d 210 (Fla. 3rd DCA 1993);
Charlie Brown’s of Tampa, Inc. v. Cook, 630 So.2d 1158 (Fla. 2nd DCA 1993).
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« Reply #1 on: December 08, 2006, 12:34:22 PM »

Relief from Judgment rule (1.540(b) )   From Berman’s Florida Civil Procedure book

540.3 Limited purpose
While the purpose of the rule is reasonably evident on its face. i.e., relieving a party from the effect of a judgment in the specified circumstances, the Florida Supreme Court has made it clear that the purpose is NOT to serve as a substitute for
the procedures afforded by Rule 1.530 (new trial, rehearing and amendment of judgments) or
“for appellate review of judicial error.”
Curbelo v. Ullman, 571 So.2d 443, 444 (Fla. 1990) (citation omitted). See also Rolfs v. First Union Nat’l Bank, 604 So.2d 1269, 1270 (Fla. 4th DCA 1992)

Thus, where an issue could have been raised by a party aggrieved by the entry of a judgment either by timely post entry motion or appeal, an application under Rule 1.540 CAN be deemed inappropriate.
See. e.g., Sacco v. Slavin, 641 So.2d 955, 957 (Fla. 3rd DCA 1994) (affirming trial court’s denial of defendant’s counsel had been granted leave to withdraw, defendant did not receive notice that continuance of trial was denied, and defendant did not appear at trial, and where trial court reasoned that because defendant knew of entry of judgment on that same day, he had ample time to seek relief by motion or appeal) (citing Curbelo v. Ullman, 571 So.2d 443 (Fla. 1990.)).

Furthermore, Rule 1.540 is not intended to allow parties to reopen lawsuits to assert new claims or “offer new evidence omitted by oversight or inadvertence.”
Viking Gen Corp. v. Diversified Mortgage Investors, 387 So.2d 983, 985 (Fla. 2nd DCA 1980).

If relief is sought by motion, notice of the motion and a hearing is required if extrinsic evidence is necessary to show the error. If mistake appears on the face of the record, however, neither a hearing nor even any notice is required.
Rule 1.540(a), Fla. R. Civ. P.;
Chavez v. Balesh, 704 F.2d 774, 776-77 (5th Cir. 1983)

As expressly provided by the rule, a motion may be made at any time, even while an appeal is pending, except after the record on appeal has been docketed in the appellate court, at which point leave of the appellate court is required to permit the trial court to remedy mistakes by Rule 1.540(a).

540.5 Relief under Subdivision (b)
[1] Grounds for Relief.
540.5 [1] [a] Relief under (b)(1), Mistake, Inadvertence, Surprise or Excusable Neglect.
Because most motions for relief from judgment under Rule 1.540 are made under subdivision (b)(1), there are innumerable decisions interpreting and applying this subdivision. Accordingly, the following commentary is intended merely to address some of the more commonly raised issues in such cases.

What constitutes Mistake, Inadvertence or Surprise.
There are few cases dealing with what constitutes surprise. One example of surprise is where a party first finds out about a class action after judgment has been entered against the class of which he or she is a member. In order to have standing to seek relief, the moving party has to prove that he or she did not have actual notice of the suit in time to seek leave to intervene.
Paulino v. Hardister, 306 So.2d 125, 129-30 (Fla. 2nd DCA 1974); see also Bennett v. Ward, 667 So.2d 378, 381 (Fla. 1st DCA 1995) (where a judicial foreclosure sale was held without notice to the judgment debtor).

The types of mistake contemplated by the rule “are usually factual and made by a party or the court.
Viking Gen Corp. v. Diversified Mortgage Investors, 387 So.2d 983, 985 (Fla. 2nd DCA 1980).

Mistake or inadvertence, as contemplated by the rule, is an honest and inadvertent error made in the ordinary course of litigation, usually by the court itself.
Marx v. Redd, 368 So.2d 101, 103 (Fla. 4th DCA 1979) (citing Danner v. Danner, 206 So.2d 650 (Fla. 2nd DCA 1968)).

The general purpose is to set the record straight.
Viking Gen Corp. v. Diversified Mortgage Investors, 387 So.2d 983, 985 (Fla. 2nd DCA 1980) (citing Danner v. Danner, 206 So.2d 650 (Fla. 2nd DCA 1968)).

Unilateral mistakes of law and misunderstandings of possible effects of judicial decrees and judgments are not grounds for relief.
Skinner v. Skinner, 579 So.2d 358, 359 (Fla. 4th DCA 1991) (citing Kuykendall v. Kuykendall, 301 So.2d 466, 467 (Fla. 1st DCA 1974)).

Examples of mistakes correctable by subdivision (b)(1) are:
(1) when counsel inadvertently and through error submits an incorrect order which the court signs;
Marx v. Redd, 368 So.2d 101, 103 (Fla. 4th DCA 1979) (holding that it was completely appropriate to vacate an order that was inadvertently submitted to the court by counsel).

(2) entry of a final judgment under a mistaken belief that the party against whom the judgment is being entered is in default;
Odum v. Morningstar, 158 So.2d 776, 778 (Fla. 2nd DCA 1963), disapproved on other grounds in Bland v. Mitchell, 245 So.2d 47 (Fla. 1970).

(3) mutual mistake of the parties;

Cardinale v. Thompson, 592 So.2d 799, 801 (Fla. 4th DCA), review denied, 602 So.2d 943 (Fla. 1992) (release executed under mutual mistake of parties as to a past or present fact may be set aside under appropriate circumstances.).

(4) an order of dismissal inadvertently entered without an intended reservation of jurisdiction;
Yavitz v. Martinez, Charlip, Delgado & Belefer, 568 So.2d 103, 105 (Fla. 3rd DCA 1990), review denied, 576 So.2d 295 (Fla. 1991).
But see Meyer v. Meyer, 525 So.2d 462 (Fla. 4th DCA) (inappropriate for court to modify final order to include a reservation of jurisdiction despite the fact that the parties stipulated that the court should retain jurisdiction to award attorney’s fees; relief should have been sought pursuant to Rule 1.530), review denied, 536 So.2d 244 (Fla. 1988).

(5) the failure of the court to send the defendant a copy of the final judgment, thus precluding a timely appeal of the judgment;  and
Newell v. Moore, 789 So.2d 538, 539 (Fla. 1st DCA 2001);
Gibson v. Buice, 381 So.2d 349, 350-51 (Fla. 5th DCA 1980).
But see Ashley v. Stat, 845 So.2d 1008, 1009 (Fla. 5th DCA 2003) (stating that, “n civil cases in which a party does not receive a copy in which a party does not receive a copy of an order or judgment from the court until after the time for filing an appeal has expired, relief has been granted by allowing the party to file a motion to set aside the judgment or order because of clerical error,” presumably pursuant to Rule 1.540(a)) (citing Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla. 1979) and Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980)).

(6) then entry of a judgment by the court which neglects to deduct from the judgment the adjudicated amount of the proportion of the plaintiff’s comparative negligence.
E.F. Hutton v. Sussman, 504 So.2d 1372, 1373-4 (Fla. 3rd DCA 1987).

Examples of mistakes that are not properly correctable under the rule are:
(1) a witness’s testifying incorrectly;
Viking Gen Corp. v. Diversified Mortgage Investors, 387 So.2d 983, 986 (Fla. 2nd DCA 1980) (holding mistakes of a witness in substantive testimony are not the type of mistake contemplated by Rule 1.540(b)(1): “the necessary finality of litigation prohibits us from giving parties a second chance at proof they had available in the first instance, but overlooked or chose not to use.”).

(2) a miscalculated reliance by one party on a representation by the other party;
Danner v. Danner, 206 So.2d 650, 654 (Fla. 2nd DCA 1968); cf. Weeks Cartage, Inc. v. CSX Transp., 547 So.2d 237, 238 (Fla. 1st DCA 1989) (defendant’s reliance upon representation of plaintiff’s counsel that there was no need to take any action constitutes excusable neglect).

(3) judicial error, such as a mistaken view of the law;
Curbelo v. Ullman, 571 So.2d 443, 445 (Fla. 1990);
Allstate Ins Co. v. Ramjit, 788 So.2d 402, 403 (Fla. 3rd DCA 2001);
Carnival Leisure Indus. V. Sherman, 641 So.2d 202, 202 (Fla. 4th DCA 1994) (per curiam);
Eastern Ceiling & Supply Corp. v. Powerhouse Insulation, Inc., 589 So.2d 383, 385 (Fla. 4th DCA 1991) (“A mistaken view of the law is considered to be a judicial error” and judicial error is not a circumstance contemplated by the rule that would entitle a party to relief.) (per curiam).

(4) a court’s change in its view of the law;
Schrank v. State Farm Mut. Auto. Ins. Co., 438 So.2d 410, 412 (Fla. 4th DCA 1983).

(5) and a tactical error.
Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla. 1986).

What Constitutes Excusable Neglect

The Meritorious Defense Requirement

The Diligence Requirement

540.5 [1] Subdivision (b)(2): Newly Discovered Evidence

540.5 [1] [c] Subdivision (b)(3): Fraud, Misrepresentation and Misconduct  

540.5 [1][d] Subdivision (b)(4): Where the Judgment/Order is Void.
In general, where a court is legally organized, has subject matter jurisdiction and the parties are given an opportunity to be heard, “errors, irregularities or wrongdoing in proceedings, short of illegal deprivation of opportunity to be heard, will not render the judgment void.”
Curbelo v. Ullman, 571 So.2d 443, 445 (Fla. 1990) (relief not available under 1.540(b) when judgment for damages is entered non-jury, despite non-waived jury demand, where aggrieved parties has notice of proceedings and opportunity to seek new trial or take appeal) (citing Florida ex rel. Fulton Bag & Cotton Mills v. Burnside, 153 Fla. 599, 15 So.2d 324 (!943)).  

However, a judgment entered without notice to a party or the party’s attorney is subject to collateral attack and may be rendered void under 1.540(b)(4).
Greisel v. Gregg, 733 So.2d 1119 (Fla. 5th DCA 1999) (final judgment void where notice of hearing that resulted in judgment was sent to incorrect address and defendant failed to receive notice as a result);
Weber v. Shea, 742 So.2d 443 (Fla. 4th DCA 1999) (lack of proper notice that party is applying for final judgment is classic reason to set aside judgment under Rule 1.540(b)).

If a court determines that the judgment is void, it has no discretion and must vacate the judgment.
State v. Bailey, 603 So.2d 1384, 1386-7 (Fla. 1st DCA 1992).

Examples of defects rendering judgments void are:
(1) lack of proper due process notice. (e.g., a judgment entered by default for relief exceeding or different from that sought in the complaint.);
Saharuni v. Saharuni, 343 So.2d 674 (Fla. 2nd DCA 1977);
Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970);
see also Hully v. Hully, 653 So.2d 1138 (Fla. 2nd DCA 1995);
Kennedy v. Richmond, 512 So.2d 1129, 1130 (Fla. 4th DCA 1987) (party not served with process);
Sams Food Store, Inc. v. Alvarez, 443 So.2d 211 (Fla. 3rd DCA 1983).
 
(2) ineffective service
It is usually only where service is so defective that the defendant does not have notice of the suit that a judgment is void, because, in such an instance, there has been a denial of due process.  
Gelkop v. Gelkop, 384 So.2d 195, 200 (Fla. 3rd DCA 1980).
Whether a judgment is void or voidable when there are defects in the manner in which constructive service is made is not clear.
Compare
Great Am. Ins. Co. v. Bevis, 652 So.2d 382, 383-4 (Fla. 2nd DCA 1995) (judgment obtained on constructive service of process is void, not voidable, if the plaintiff fails to allege in conclusionary fashion in the complaint the basis for constructive service, even though there was apparently evidence in the record to support personal jurisdiction.)
with
Demars v. Village of Sandalwood Lakes Homeowners Ass’n, 625 So.2d 1219, 1221 (Fla. 4th DCA 1993) (judgment is voidable, not void, where affidavit supporting constructive service alleged in conclusory fashion that diligent search and inquiry were made concerning the residence of the defendant.).

resulting in a lack of personal jurisdiction;
See Kennedy v. Alberto, 649 So.2d 286 (Fla. 4th DCA 1995);
Ubila v. L & W Supply, 637 So.2d 994 (Fla. 3rd DCA 1994);
Saharuni v. Saharuni, 343 So.2d 674 (Fla. 2nd DCA 1977);
Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970);

(3) lack of subject matter jurisdiction;
State v. Bailey, 603 So.2d 1384, 1386-7 (Fla. 1st DCA 1992) (award of prejudgment interest against the state was void for lack of subject matter jurisdiction because such relief was precluded by doctrine of sovereign immunity).

(4) a judgment entered by agreement of counsel; but without a client’s consent.
Vantage Broad. Co. v. WINT Radio, Inc., 476 So.2d 796. 798 (Fla. 1st DCA 1985) (“An unauthorized compromise, executed by an attorney, unless subsequently ratified by his client, is of no effect and may be repudiated or ignored and treated as a nullity by the client.”) (citation omitted).


 
540.5 [1][e] Subdivision (b)(5): Satisfaction, Release or Discharge.
Subdivision (b)(5) is intended to allow the court to grant relief against an unjust decree, and is to be liberally construed to advance the goal of preventing injustice.
Cutler Ridge Corp. v. Green Springs, Inc., 249 So.2d 91, 93 (Fla. 3rd DCA 1971) (referring to Rule 1.540 generally)
But see In re Guardianship of Schiavo, 792 So.2d 551, 559 (Fla. 2nd DCA 2001) (stating that, out of a desire “to prevent the finality of judgments, … [Rule 1.540(b)(5)] has been rather narrowly construed”) (citing Hensel v. Hensel, 276 So.2d 227 (Fla. 2nd DCA 1973)).

Inequities referred to are those that arise after the judgment is entered, not those which could have been raised as defenses to the action.
State v. Wright, 498 So.2d 1008 (Fla. 2nd DCA 1986);
Hensel v. Hensel, 276 So.2d 227 (Fla. 2nd DCA 1973).
As one court has put it, Rule 1.540(b)(5) ”requires the movant to establish that significant new evidence or substantial changes in circumstances arising after the entry of the judgment make it ‘no longer equitable’ for the trial court to enforce its earlier order.”
In re Guardianship of Schiavo, 792 So.2d 551, 559-60 (Fla. 2nd DCA 2001).

“This is so because to say, in the language of the rule, that it is ‘no longer equitable’ that a judgment be given prospective effect is to say that it once was equitable that it have such effect.
Hensel v. Hensel, 276 So.2d 227, 228 (Fla. 2nd DCA 1973).
One instance where a court found it inequitable to enforce a judgment prospectively is where a fraudulent securities scheme resulted in an innocent individual having a judgment entered against him in favor of a brokerage firm.
Weitzman v. F.I.F. Consultants, Inc., 468 So.2d 1085 (Fla. 3rd DCA 1985).
After the innocent victim successfully sued the parties who perpetrated the fraud, the perpetrators purchased the brokerage firm’s judgment entered against the innocent individual. The court stated that allowing the judgment to stand “would serve impermissibly both to reward a wrongdoer and to penalize the victim of his misconduct.”
Weitzman v. F.I.F. Consultants, Inc., 468 So.2d 1085 (Fla. 3rd DCA 1985).

In order to obtain relief under Rule 1.540(b)(5) (the counterpart to Federal Rule 60(b)(5),
Curtiss-Wright Corp. v. Diaz, 507 So.2d 1197, 1198 (Fla. 3rd DCA 1987) (holding because the language of Rule 1.540(b)(5) is the same as the language of Fed.R.Civ.P. 60(b)(5), it is appropriate to look to “the construction given [Federal Rule 60(b)(5)] by the federal courts as authority for the correct interpretation of the Florida Rule’”) (quoting Brown v. Brown, 432 So.2d 704 (Fla. 3rd DCA 1983), disapproved on other grounds, DeClaire v, Yohanon, 453 So.2d 375 (Fla. 1984)). See also In re Guardianship of Schiavo, 792 So.2d 551, 559 (Fla. 2nd DCA 2001).

the party seeking relief must establish that: (1) the judgment has prospective application; and (2) it is no longer equitable that it be given effect.
Kirksey v. City of Jackson, 714 F.2d 42, 43 (5th Cir. 1983).

A judgment for money damages, however, does not have prospective application even if the judgment dismisses the plaintiff’s action “merely because the plaintiff continues to be bound by it.”
Curtiss-Wright Corp. v. Diaz, 507 So.2d 1197, 1198 (Fla. 3rd DCA 1987) (citing Gibbs v. Maxwell House, 738 F.2d 1153 (11th Cir. 1984)).

In addition, a change in the law occurring after a judgment has become final is not a basis for relief under Rule 1.540(b)(5).
One exception to this rule may exist “ ‘when an ongoing injunction is being considered.’ “ Ellis Nat’l Bank v. Davis, 379 So.2d 1310, 1310 (Fla. 1st DCA 1980) (quoting trial court).
Relief from judgment was also granted, upon post-judgment law, where the challenged judgment was based upon a prior judgment that was subsequently reversed. Austin v. B.J. Apparel Corp., 523 So.2d 675, 677 (Fla. 3rd DCA 1988) (holding that relief from judgment was appropriate where summary judgment was based upon a prior bankruptcy court judgment that was subsequently reversed.).

540.5 [2] Other Considerations
[a] When the motion can be made:
The Earliest Time: In most circumstances, a trial court is deprived of its jurisdiction once the litigation is terminated (whether by judgment, decree, order or stipulation)
Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla. 1986).

And the time for serving motions under 1.530 expires.
Shelby Mut. Ins. Co. v. Pearson, 236 So.2d 1,3 (Fla. 1970).

The sole exception to this is Rule 1.540, which provides the trial court with limited jurisdiction.
The limited jurisdiction bestowed upon the trial court includes the power to correct errors with respect to a voluntary notice of dismissal, so long as one of the rule’s grounds for entitlement to relief exists.
Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla. 1986).

“to relieve a party from the act of finality [of a final judgment] in a narrow range of circumstances” set forth in the rule.
Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla. 1986).
It should be noted, however, that Rule 1.540(b) only applies to final orders. It is not available to set aside interlocutory orders such as defaults, discovery orders or an order granting a motion for summary judgment without a final judgment having being entered. See, e.g.
Kozich v. Debrino, 837 So.2d 1041, 11044 (Fla. 4th DCA 2002 (temporary injunction);
Bruno v. A.E. Handy & Assocs., Inc., 787 So.2d 251, 252 (Fla. 5th DCA 2001) (defaults);
Hi-Tech Mktg. Group, Inc. v. Thiem, 659 So.2d 479 (Fla. 4th DCA 1995) (discovery order);
Nolan’s Towing and Recovery v. Marino Trucking, Inc., 581 So.2d 644, 644-45 (Fla. 3rd DCA 1991) (order granting motion for summary judgment was not a final order and thus relief was not available under Rule 1.540(b); appropriate mechanism would have been either an interlocutory appeal pursuant to Fla. R. App. P. 9.130(a)(3)(C)(iv), or a motion for reconsideration).

Time Limitations Triggered by Filing.
The 2003 amendment to Rule 1.540(b) codified what had previously been recognized by case law: that the requirement that the motion for relief be “made” with a reasonable time or within 1 year meant “filed”.
See Amendments to the Florida Rules of Civil Procedure (Two-Year Cycle) and Florida Rules of Appellate Procedure 9.110, 858 So.2d 1013, 1015, 1030-31 (Fla. 2003)

This differentiates Rule 1.540(b) from many timing-related rules that rely not on filing, but on “service” of motions.
See, e.g., Rule 1.140 (responsive pleadings and motions must be “served” within 20 days);
Rules 1.140 and 1.190 (amended pleadings must be “served” within 10 days, when granted leave to amend, or as of right, within 20 days after original pleading);
Rules 1.340, 1.350 and 1.370 (responses to interrogatories, document requests and requests for admission must be “served” 30 days after service of the discovery requests);
Rule 1.410 (10 days to “serve” objections to subpoena);
Rule 1.530 (motions for new trial/rehearing and opposing affidavits must be “served” within time limitations).

The Effect of an Appeal.
A trial court, however, does not have jurisdiction to entertain a motion for relief from judgment pursuant to Rule 1.540(b) when an appeal from the final judgment is pending.
Calehuff v. Calehuff, 433 So.2d 1021, 1022 (Fla. 4th DCA 1983) (citing Glatstein v. City of Miami, 391 So.2d 297 (Fla. 3rd DCA 1980), and
Leo Goodwin Found., Inc. v. Riggs Nat’l Bank, 374 So.2d 1018 (Fla. 4th DCA 1979));
Edward J. DeBartolo Corp. v. Dryvit Sys., Inc., 368 So.2d 85 (Fla. 2nd DCA 1979).
This rule applies equally to a non-party seeking to attack a judgment by independent action. Zuckerman v. Alex Hofrichter, P.A., 630 So.2d 210, 211-12 (Fla. 3rd DCA 1993) (holding “that upon the filing of a notice of appeal … a non-party may not pursue an independent action attacking” the final judgment that is the subject of the appeal.).

That is, according to at least one district court of appeal, a trial court loses jurisdiction to enter an order pursuant to Rule 1.540(b) once a notice of appeal
Unlike post-judgment motions that specifically identified in Rule 9.020(h), Fla.R.App.P. (e.g., motion for new trial or rehearing, clarification, or certification; to alter or amend; or for judgment notwithstanding verdict), a motion for relief from judgment under Rule 1.540(b) is not abandoned by the filing of an appeal prior to the disposition of the motion.
See Kennedy v. Alberto, 649 So.2d 286, 288 (Fla. 4th DCA 1995) (recognizing, however, that the trial court was precluded from deciding the motion until after the appeal was decided).
But see First Union Nat’l Bank v. Yost, 622 So.2d 111, 113 (Fla. 1st DCA 1993) (holding that motion for rehearing and relief from judgment was abandoned by the filing of a notice of appeal).
The First Union court relied on the decision in In re Forfeiture of $104, 591 in U.S. Currency, 589 So.2d 283 (Fla. 1991), where the Florida Supreme Court held that a party had abandoned a previously filed post-judgment motion when an appeal was filed with respect to that same judgment because the post-judgment motion was the type identified in Rule 9.020(g) as being abandoned upon the filing of a notice of appeal before the motion is decided.
In re Forfeiture of $104, 591 in U.S. Currency, 589 So.2d 283, 285 (Fla. 1991).
It was unclear from the decision in First Union, however, whether the motion for relief was served within ten days of the entry of the judgment to which it pertained. The Kennedy court concluded that the only reasonable explanation for the holding in First Union was that the motion had been filed within the ten-day period. Notably, the Kennedy court cited the intermediate appellate decision in Forfeiture, 578 So.2d 727 (Fla. 3rd DCA 1991), when in actuality the court had relied on the Supreme Court’s decision. Kennedy, supra, 649 So.2d at 287, n.1.
 
is filed,
Walker v. Walker, 401 So.2d 872 (Fla. 2nd DCA 1981).  
 
unless the trial court obtains permission from the appellate court to retain jurisdiction to consider the motion.
Glatstein v. City of Miami, 391 So.2d 297, 298 (Fla. 3rd DCA 1980);
Leo Goodwin Found., Inc. v. Riggs Nat’l Bank, 374 So.2d 1018, 1019 (Fla. 4th DCA 1979));
Hutchison v. Wintrode, 286 So.2d 231 (Fla. 2nd DCA 1973).
Notably, Rule 1.540(a) expressly requires leave of the appellate court as a prerequisite to the trial court’s correction of a clerical mistake after an appeal is commenced and the record has been docketed. Rule 1.540(b), however, is silent on this issue.
The Supreme Court, in Ohio Casualty Group v. Parrish, 350 So.2d 466, 468-69 (Fla. 1977), suggested that leave is not required to obtain relief pursuant to Rule 1.540(b) while an appeal is pending, but the issue was not before the Court. The issue before the Supreme Court in Parrish was whether leave was required to entertain a motion to vacate a judgment pursuant to Rule 1.540(b), after an appellate court had affirmed the judgment that was the subject of the motion for relief. Ohio Ca. Group v. Parrish, 350 So.2d 466, 469-70 (Fla. 1977). The District Court in Leo Goodwin distinguished Parrish on the ground that the very judgment sought to be vacated was presently pending in the appellate court and “may or may not be affirmed”. Leo Goodwin Found., Inc. v. Riggs Nat’l Bank, 374 So.2d 1018, 1019 (Fla. 4th DCA 1979). The Leo Goodwin court was concerned that if the trial court proceeded with the motion to vacate, “the appellate jurisdiction might well be frustrated.” Leo Goodwin Found., Inc. v. Riggs Nat’l Bank, 374 So.2d 1018, 1019 (Fla. 4th DCA 1979).

The typical procedural mechanism for obtaining leave is by filing a motion for relinquishment of jurisdiction with the appellate court.
See Glatstein v. City of Miami, 391 So.2d 297, 298 (Fla. 3rd DCA 1980).

Whether the appellate court will grant such permission and temporarily relinquish jurisdiction so the trial court can entertain the 1.540(b) motion is to be considered on a case by case basis.
Leo Goodwin Found., Inc. v. Riggs Nat’l Bank, 374 So.2d 1018, 1019 (Fla. 4th DCA 1979) (citing 7 Moore’s Federal Practice, s. 60.3092)).

A trial court, however, may entertain a timely motion for relief under Rule 1.540(b) after the affirmance of the judgment by the appellate court, without first obtaining leave from the appellate court.
Ohio Ca. Group v. Parrish, 350 So.2d 466 (Fla. 1977). The rationale for not requiring leave is that the “requirement of leave from an appellate court can only constitute a useless and delaying formalism”. Id at 468. Furthermore, an evidentiary hearing is ordinarily required to determine whether the requirements for relief have been met and “t is the trial court and not the appellate court which is in the favored position to conduct such a hearing.” Id.


The Latest Time: The One-Year Limitation on Subdivisions (b)(1), (2) and (3).
As expressly provided in the rule, a motion for relief must be made within a reasonable period of time,
“Although Rule 1.540(b) … provides an outside limit of one year in which to file a motion for relief … the rule contemplates a shorter period measured by a standard of reasonableness.”
Garvin v. South Carolina Ins., Co., 528 So.2d 929, 930 (Fla. 2nd DCA 1988).
A party must act with due diligence in filing a motion for relief. Whether a party has acted diligently depends on the circumstances. Paleias v. Wang, 632 So.2d 1132, 1134 (Fla. 4th DCA 1994) (due diligence not existing when moving party waited 100 days after receiving unilateral pretrial statement which indicated a default had been entered and no explanation was offered for the delay). See also Commentary para. 540.5[1][a], supra.

And for subdivisions (b)(1), (2), and (3), the motion must be made within one year from the date the judgment is entered.
Kennedy v. Alberto, 649 So.2d 286, 288 (Fla. 4th DCA 1995).
For purpose of Rule 1.530(b), entry of judgment means “the recording of the judgment – the spreading of the judgment upon the court’s official records.”
Casto v. Casto, 404 So.2d 1046, 1048 (Fla. 1981).
It is unclear whether this interpretation applies to Rule 1.540.
Compare:
Grossman v. Roth, P.A., v. Rapp, 600 So.2d 1202 (Fla. 4th DCA 1992) (Warner, J., concurring specially);
With:
Pruitt v. Brock, 437 So.2d 768, 771 (Fla. 1st DCA 1983).

The time limitation under the rule cannot be extended.
Rule 1.090(b), Fla.R.Civ.P.

The one-year time limitation may be shortened, however, when due diligence has not been exercised.
See Commentary para. 540.5[1][a], supra.

The Tolling of the One-Year Limitation Period
The one-year limitation for seeking relief under (b)(1), (2) and (3), is not tolled by the filing of an appeal.
Marco Tech Corp. v. Reynolds, 520 So.2d 63, 65 (Fla. 4th DCA) (appeal from dismissal of a collateral attack on a foreclosure judgment does not toll one-year period for seeking relief under Rule 1.540(b)), review denied, 531 So.2d 168 (Fla. 1988);
Stembridge v. Preferred Risk Mut. Ins. Co. of  Iowa, 778 So.2d 995, 995 (Fla. 3rd DCA 1998);
Seven-Up Bottling Co. v. George Constr. Corp., 153 So.2d 11, 13 (Fla. 3rd DCA 1963), But see First Union Nat’l Bank v. Yost, 622 So.2d 111, 114 (Fla. 1st DCA 1993) (filing of notice of appeal tolled period for filing a second motion for relief from judgment when first motion abandoned by the filing of a conditional notice of appeal.).

A timely motion served pursuant to Rule 1.530 after a judgment has been entered, however, effectively extends the time in which a final judgment is entered, for purposes of the one-year time limitation in Rule 1.540(b), until such time as the motion is ruled upon by the trial court and the written order is filed with the clerk of the trial court.
Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983).



The one-year time period does not begin to run until after the trial court loses jurisdiction over the matter either at the expiration the time to seek relief under Rule 1.530 or, if relief is sought, upon disposition of the motion.
Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983).

The test is whether the judicial labor is at an end.
Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983) (citing Slatcoff v. Dezen, 72 So.2d 800, 801 (Fla. 1954)).

In addition, a motion to relinquish jurisdiction filed with the appellate court after a judgment has been appealed, even if denied by the appellate court, tolls the one-year time limitation.
Glatstein v. City of Miami, 391 So.2d 297, 299 (Fla. 3rd DCA 1980).

540.5 [2] Only One Opportunity to Seek Relief.
A party usually only has one opportunity to seek relief under Rule 1.540(b).
That is, a party is precluded from seeking relief a second time when the motion merely alleges grounds for relief which were previously asserted or could have been asserted in the initial motion.
State v. Bailey, 603 So.2d 1384, 1386 (Fla. 1st DCA 1992).

In fact, a court is without jurisdiction to entertain a second motion for relief which does nothing more than attempt to relitigate the matters decided by the court, or which could have been decided by the court, on the first motion for relief.
Steeprow Enters., Inc. Lennar Homes, Inc., 590 So.2d 21, 23 (Fla. 4th DCA 1991) (citing Atlas v. City of Pembroke Pines, 441 So.2d 652, 652 (Fla. 4th DCA 1983), review denied, 450 So.2d 485 (Fla. 1984)). It is fundamental error for a court to entertain a motion to set aside or vacate when the grounds raised could not have been raised in a previously filed motion for relief two years earlier. Purcell v. Deli Man, Inc., 411 So.2d 378, 379 (Fla. 4th DCA), review denied, 421 So.2d 68 (Fla. 1982).


540.5 [2][c] The Evidentiary Showing Required.
In order to obtain relief under Rule 1.540(b), the movant must tender sufficient evidence to invoke the court’s jurisdiction.
Rude v. Golden Crown Land Dev. Corp., 521 So.2d 351, 353 (Fla. 2nd DCA 1988).

Because this evidence is inherently factual, the motion must be verified or supported by affidavit or sworn testimony.
DiSarrio v. Mills, 711 So.2d 1355, 1356-57 (Fla. 2nd DCA 1998);
Citibank v. PNC Mortgage Corp. of Am., 718 So.2d 300 (Fla. 2nd DCA 1998);
Schauer v. Coleman, 639 So.2d 637, 638-39 (Fla. 2nd DCA 1994);
DeRuyter v. State, 521 So.2d 135, 136 (Fla. 5th DCA 1988), disapproved on other grounds sub nom. Butterworth v. Caggiano, 605 So.2d 56 (Fla. 1992);
Winky’s Inc. v. Francis, 229 So.2d 903, 906 (Fla. 3rd DCA 1969);
Hall v. Byington, 421 So.2d 817 (Fla. 4th DCA 1982) (Excusable neglect “must be established by a sworn pleading which states a legal excuse for failure to comply with the rules of procedure or by testimony under oath in support of an unsworn motion.”).

An unsworn or unsupported motion is insufficient.
Eden Park Mgmt., Inc. v. Zagorski, 821 So.2d 1263 (Fla. 4th DCA 2002);
Perry v. University Cabs, Inc., 344 So.2d 914, 915 (Fla. 3rd DCA 1977);
Metcalf v. Langston, 296 So.2d 81, 82 (Fla. 1st DCA 1974).

An affidavit filed in support of a motion for relief containing conclusory statements rather than the facts setting forth entitlement to the relief sought is insufficient.
Inter-Atlantic Ins. Servs., Inc. v. Hernandez, 632 So.2d 1069, 1070 (Fla. 3rd DCA 1994). Where the motion is too vague to determine whether the moving party is entitled to relief, the movant should be given an opportunity to file an amended motion settling forth the facts upon which the request for relief is based.
Shienwold v. Habie, 627 So.2d 1203, 1205 (Fla. 4th DCA 1993) (citing In re Will of Aston, 262 So.2d 246, 248-49 (Fla. 4th DCA 1972)).

In addition, a trial court is precluded from making factual determination based upon an attorney’s unsworn statements in the motion or at a hearing on the motion.
DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2nd DCA 1998) (“Argument by counsel who is not under oath is not evidence.”) (citations omitted);
Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So.2d 838, 841 (Fla. 2nd DCA 1994).


540.5 [2][d] The Scope of the Review.
The decision whether to grant or deny relief under subdivisions (b)(1), (2), (3), and (5), is left to the sound discretion of the trial court.
Church v. Strickland, 382 So.2d 419, 420 (Fla. 5th DCA 1980)
(subdivision (b)(1), excusable neglect) (citing Allen v. Wright, 350 So.2d 111 (Fla. 1st DCA 1977) and  Kash N’ Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla., 2nd DCA 1969));
Kline v. Belco, Ltd., 480 So.2d 126, 128 (fla. 3rd DCA 1985) (Hubbart, J., dissenting)
(subdivision (b)(2);
Ashland Oil v. Pickard, 289 So.2d 781 (Fla. 3rd DCA 1974) (subdivision (b)(3));
Mangham v. Jenks, 610 So.2d 85, 86 (Fla. 1st DCA 1992) (subdivision (b)(5)).
This discretion should be liberally exercised, especially with respect to applications to set aside default judgments, “so as to permit a trial on the merits.” Pedro Realty, Inc. v. Silva, 399 So.2d 367, 369 (Fla. 3rd DCA 1981).
In Geer v. Jacobsen, 2004 WL 1057735, at *2 (Fla. 2nd DCA May 7, 2004), the court said that the standard of review for an order granting a motion to vacate a default and default is “gross abuse of discretion,” whereas the standard of review for an order denying a motion to vacate a default and default judgment is abuse of discretion, a lower standard, citing Lindell Motors, Inc. v. Morgan, 727 So.2d 1112, 1113 (Fla. 2nd DCA 1999), Merrill Lynch Mortgage Capital, Inc. v. Hallmark Indus., Inc. 627 So.2d 12, 13 (Fla. 2nd DCA 1993), Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206, 208 (Fla. 2nd DCA 1990), and Garcia Ins. Agency, Inc. v. Diaz, 351 So.2d 1137, 1138 (Fla. 2nd DCA 1990).
As set forth in Commentary para. 540.5[1][d], supra, if relief is sought pursuant to subdivision (b)(4), once the court determines that the judgment is void, it has no discretion and must vacate the judgment.

The determination of whether the facts entitle the movant to relief is left to the trial court, not the appellate court.
Farish v. Lum’s, Inc., 267 So.2d 325, 327-28 (Fla. 1972);
Church v. Strickland, 382 So.2d 419, 420 (Fla. 5th DCA 1980) (recognizing that the trial court’s discretion “is of the broadest scope” and stating that the trial court should only be reversed upon a showing of “gross abuse of discretion”).
See. e.g., Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla. 1977). “f there is any reasonable doubt in the matter, it should be resolved in favor of granting the application and allowing the trial upon the merits.” Church v. Strickland, 382 So.2d 419, 420 (Fla. 5th DCA 1980).

The circumstances entitling a party to relief have not been precisely defined, thus the facts in each case are of singular importance in determining whether to grant or deny relief.
Edwards v. City of Fort Walton Beach, 271 So.2d 136, 137 (Fla. 1972);
Schwab & Co. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3rd  DCA 1978).

540.5 [2][e] The Requirement for an Evidentiary Hearing under Subdivisions (b)(1), (2), (3) and (5).
An evidentiary hearing is usually required to determine whether the party seeking relief pursuant to subdivisions (b)(1), (2), (3) and (5) has satisfied the requirements for obtaining relief.
Ohio Cas. Group v. Parrish, 350 So.2d 466, 468 (Fla. 1977).
An evidentiary hearing is required where the party seeking relief denies receipt of notice of hearing which resulted in the judgment that is the subject of the request for relief.
Liberty Mut. Ins. Co. v. Lyons, 622 So.2d 621, 622 (Fla. 5th DCA 1993);
Goudie v. Garcia, 584 So.2d 100, 101 (Fla. 3rd DCA 1991).
An evidentiary hearing is also usually required when the basis for relief is newly discovered evidence or fraud.
Pelikis v. Florida Keys Boys Club, 302 So.2d 447, 448-49 (Fla. 3rd DCA 1974).
In some instances, usually where fraud is the ground asserted for relief, discovery may be required to give the parties “a full opportunity to present all the available facts to the court.” Pelekis v. Florida Keys Boys Club, 302 So.2d 447, 448-49 (Fla. 3rd DCA 1974).
See also In re Guardianship of Schiavo, 800 So.2d 640, 644 (Fla. 2nd DCA 2001) (where the court reversed a summary denial of a Rule 1.540(b)(5) motion and remanded for a hearing, noting that 2][g] Effect of a Motion on the Ability to Execute.
As expressly stated in the rule, the filing of a motion for relief does not affect the finality of the judgment or suspend its operation. Thus the party not seeking relief is free to proceed with enforcement.
A judgment creditor is precluded from enforcing the judgment only:
(1) within the time for serving a motion for new trial or rehearing (or in the event such a motion is timely served, until it is determined), unless otherwise specially ordered by the court (Rule 1.550(a), Fla.R.Civ.P.);  
(2) during the pendency of a stay pending appeal, ordered by the trial judge (Rule 1.550(b), Fla.R.Civ.P., and Rule 9.310(a), Fla.R.App.P.);
(3) during the pendency of a stay pending appeal, ordered by the appellate court (Rule 9.310(f), Fla.R.App.P.); or
(4) during an automatically effective stay pending appeal, where a money judgment is bonded (Rule 9.310(b)(1), Fla.R.App.P.).
See Commentary para. 560.3[1][c]. infra.

Para 540.6 Independent Action to Obtain Relief
540.6 [1] Pleading requirements:
Because an independent action is a new lawsuit, the requirements of the Civil Procedure Rules for bringing suit apply. Accordingly, a complaint is required, with issuance and service of process.
First Fla. Bank v. Shafer, 503 So.2d 459, 460 (Fla. 2nd DCA 1987) (citing DeClaire v. Yohanan, 453 So.2d 375, 378 (Fla. 1984)).

540.6 [2] Relevance of Extrinsic v. Intrinsic Fraud.
An independent action for fraud upon the court may be brought at any time.
Pruitt v. Brock, 437 So.2d 768, 770 n. 1 (Fla. 1st DCA 1983). Although courts occasionally state that a motion to set aside a final judgment over one year after rendition of that judgment cannot be granted absent a showing of fraud on the court (see, e.g., DeVaughan v. Dep’t of Revenue, 691 So.2d 11 (Fla. 4th DCA 1997), and cases cited therein), there is no authority under Rule 1.540(b) for a court to entertain such a motion more than one year after the judgment was rendered even with such a showing. Unless such motion is filed within one year of rendition of the final judgment, an independent action is required under the rule.

With one limited exception for fraudulent financial affidavits filed in marital actions, only extrinsic fraud constitutes fraud on the court entitling a party to relief at any time by way of an independent action.
DeClaire v. Yohanan, 453 So.2d 375, 380 (Fla. 1984).

Relief for intrinsic fraud is available only if sought within one year of the entry of final judgment.
DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla. 1984) (quoting Fair v. Tampa Elec. Co., 158 Fla. 15, 27 So.2d 514, 515 (1946)).

Extrinsic fraud has been defined by the Florida Supreme Court as the “prevention of an unsuccessful party [from] presenting his case, by fraud or deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit or the acts of the plaintiff;
fraudulent representation of a party without his consent and connivance in his defeat; and so on.”
DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla. 1984) (quoting Fair v. Tampa Elec. Co., 158 Fla. 15, 27 So.2d 514, 515 (1946)).

Simply stated, extrinsic fraud arises where a defendant is prevented from effectively participating in the action.
DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla. 1984)
          -------------------------------------------
Conversely, intrinsic fraud applies to “fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried.”
DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla. 1984)
         -------------------------------------------
For example, false testimony in a court proceeding is intrinsic fraud.
DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla. 1984).
Allegations of coercion, duress and false financial disclosure also constitute intrinsic fraud. Cerniglia v. Cerniglia, 679 So.2d 1160 (Fla. 1966) (resolving certified conflict between Cerniglia v. Cerniglia, 655 So.2d 172, 175 (Fla. 3rd DCA 1995), holding that duress and coercion constitute intrinsic fraud; and Lamb v. Leiter, 603 So.2d 632, 635 (Fla. 4th DCA 1992), holding that duress and coercion constitute extrinsic fraud).
But see Macar v. Macar, 779 So.2d 479, 483 (Fla. 2nd DCA 2000) (stating that “
verreaching and duress are not grounds for relief from judgment pursuant to rule 1.540”), approved on other grounds, 803 So.2d 707, 713-14 (Fla. 2001)

The case law distinguishes between “false and misleading information being presented on an issue to be tried and conduct which prevents a party from trying the issue.”
DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla. 1984)
The former is intrinsic fraud; the latter is extrinsic fraud.


Para. 540.8 Appeal from a Rule 1.540 Determination
An order either granting or denying relief from any judgment, decree, or other order under this rule is appealable as of right under Rule 9.130(a)(5), Fla.R.App.P., in accordance with the appellate procedures for permissible (non-certiorari) review of non-final orders.

Because the granting or denial of relief under subdivisions (b)(1), (2), (3) and (5) is within the broad discretion of the trial court,
See Commentary para. 540.5[2][d], supra.
[2] Other Considerations
[d] The Scope of the Review

the trial court can be reversed only upon a showing of abuse of such discretion.
See Emmer v. Brucato, 813 So.2d 264, 265 (Fla. 5th DCA 2002);
Kroner v. Singer Asset Fin. Co., 814 So.2d 454 (Fla. 4th DCA 2001);
Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117, 118 (Fla. 3rd DCA 1978) (cited in Kroner).
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VIII. Relief from judgments  (Fla Jur 2d Judgment and Decrees)

A. COLLATERAL ATTACK

A1. In General

s.289 Nature of attack as collateral

An attack on a judgment or decree is considered collateral, as opposed to direct, when it is asserted against a judgment or decree that is the basis of the opponent’s claim, as where the doctrine of res judicata is asserted.
Carlor Co. v. City of Miami, 62 So.2d 897 (Fla. 1953);
Farrow v. City of Hialeah, 132 Fla. 621, 181 So. 838 (1938).

An attack may also be deemed collateral where the validity of an adjudication is denied as a defense in another proceeding.
Sells v. Jones, 151 Fla. 38, 9 So.2d 160 (1942);
White v. Crandall, 105 Fla. 70, 137 So. 272 (1931), on reh’g, 105 Fla. 70, 143 So. 871 (1932).

By contrast, a direct attack is one that attempts to avoid a judgment or decree through procedures provided for vacating, annulling, correcting, or modifying the judgment.
Bemis v. Loftin, 127 Fla. 515, 173 So. 683 (1937).

The purpose of an attack on a judgment is sometimes a guiding factor in determining whether the attack is direct or collateral.
Am. Jur. 2d, Judgments, s.910.

Thus, a collateral attack upon a judgment or decree is sometimes defined as any proceeding that is not instituted for the express purpose of annulling, correcting, or modifying it.
Skipper v. Schumacher, 124 Fla. 384, 169 So. 58 (1936).

Accordingly, under this view, a direct attack is one that attempts to avoid a judgment or decree in some manner as provided by law for that purpose,
Bemis v. Loftin, 127 Fla. 515, 173 So. 683 (1937).

That is, a proceeding which is pointed directly at the judgment.
Skipper v. Schumacher, 124 Fla. 384, 169 So. 58 (1936).

An attack is sometimes considered direct, as opposed to collateral, when it is based on grounds which render the adjudication void ab initio,
Am. Jur. 2d, Judgments, s.910.

Such as in the case of an attack on the ground of fraud in the procurement of a judgment or decree,
Dr. P. Phillips Co. v. Billo, 109 Fla. 316, 147 So. 579 (1933).

Or of a lack of jurisdiction to render it.
Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, 131 A.L.R. 1018 (1940)

On the other hand, an objection founded on alleged judicial errors, when made in a proceeding that is not authorized by law for correcting the adjudication, is a collateral attack that can succeed only upon a showing of want of power in the tribunal whose judicial judgment or decree is challenged.
Bemis v. Loftin, 127 Fla. 515, 173 So. 683 (1937).

s.290 Methods of collateral attack

An action for the recovery of damages for wrongfully obtaining a judgment is a collateral attack thereon,
Kessler v. Townsley, 132 Fla. 744, 182 So. 232 (1938).

And an attack on a judgment by a defendant where an action has been brought on the judgment is generally considered a collateral attack.
Am. Jur. 2d, Judgments, s. 915.

An action in ejectment is considered a collateral attack when it tests the validity of a prior adjudication, as where it attacks a foreclosure decree for taxes.
Johnson v. Clark, 145 Fla. 258, 198 So. 842 (1940);
Adams v. Adams, 131 Fla. 777, 180 So. 516 (1938).

A quiet title action may also be considered a collateral attack on a judgment.
Am. Jur. 2d, Judgments, s. 912.

s.291 Effect of character of court and adjudication

A collateral attack may be made in the court that rendered the judgment,
Bemis v. Loftin, 127 Fla. 515, 173 So. 683 (1937).

Or in any other court,
Gay v. McCaughan, 105 So.2d 771 (Fla. 1958);
Fiehe v. R.E. Householder Co., 98 Fla. 627, 125 So. 2 (1929).

And against judgments rendered by courts of general, limited, special, or inferior jurisdiction.
Richart v. Roper, 156 Fla. 822, 25 So.2d 80 (1946);
Ennis v. Giblin, 147 Fla. 113, 2 So.2d 382 (1941);
Crosby v. Burleson, 142 Fla. 443, 195 So. 202 (1940);
Street v. Crosthwait, 134 Fla. 158, 138 So. 820 (1938), opinion modified on reh’g, 136 Fla. 327, 185 So. 516 (1939);
Newport v. Culbreath, 120 Fla. 152, 162 So. 340 (1935);

A federal court judgment may not be collaterally attacked in a Florida state court so long as the federal court had jurisdiction to enter the judgment.
Sells v. Jones, 151 Fla. 38, 9 So.2d 160 (1942);
Hull v. Burr, 64 Fla. 83, 59 So. 787 (1912).

As to the requirement of full faith and credit to the judgments of sister states, see sections 396 to 407.

The principles governing a collateral attack on a judgment or decree apply generally to adjudications of all kinds,
Am. Jur. 2d, Judgments, s. 900.

Such as default judgments,
Ennis v. Giblin, 147 Fla. 113, 2 So.2d 382 (1941).

Judgments in rem,
Carlor Co. v. City of Miami, 62 So.2d 897 (Fla. 1953);

And final judgments or decrees.
deMarigny v. deMarigny, 43 So.2d 442 (Fla. 1949)


s.292 Standing to attack judgment

Generally, only the parties directly involved or their privities may collaterally attack a judgment.
Eyles v. Southern Ohio Sav. Bank & Trust Co., 154 Fla. 782, 19 So.2d 105 (1944);
Beaty v. Inlet Beach, 151 Fla. 495, 9 So.2d 735 (1942), opinion modified on denial of reconsideration, 152 Fla. 276, 10 So.2d 807 (1943);
Ahrenholz v. Green, 127 So.2d 139 (Fla. 3rd DCA 1961).

However, a third party may contest the validity of the judgment as a defense against the enforcement of that judgment if the enforcement of that judgment would affect the rights or interests acquired by the third party before the judgment’s rendition.
Tallentire v. Burkhart, 153 Fla. 278, 14 So.2d 395 (1943);
State ex rel. Willys v. Chillingworth, 124 Fla. 274, 168 So. 249 (1936);
Ryan’s Furniture Exchange v. McNair, 120 Fla. 109, 162 So. 483 (1935).


A2. Grounds for Attack

s. 294  Generally

A final judgment may be collaterally attacked where the judgment is void due to the trial court’s lack of jurisdiction over the subject matter or of the parties.
In re Kant’s Estate, 272 So.2d 153 (Fla. 1972);
Ramagli Realty Co. v. Craver, 121 So.2d 648 (Fla. 1960), opinion conformed to, 123 So.2d 404 (Fla. 3rd DCA 1960) and (disapproved of on other grounds by, Shell v. State Road Dept., 135 So.2d 857 (Fla. 1961);
Roberts v. Seaboard Sur. Co., 158 Fla. 686, 29 So.2d 743 (1947);
Concrete Block & Wall Co. v. Knap, 102 So.2d 742 (Fla. 3rd DCA 1958).

Or, in proceedings in rem, of the res.
Seminole Fruit & Land Co. v. Scott, 291 F. 179 (S.D. Fla. 1923);
Harvey v. City of St. Petersburg, 138 Fla. 597, 189 So. 861 (1939).

For purposes of collateral attack, a lack of jurisdiction means the absence of initial jurisdiction over the subject matter or the person, or the failure to comply with statutory requirements that are deemed to be jurisdictional requisites to the power of the court to proceed further or to act pendente lite in a matter over which it has already acquired jurisdiction of the subject matter and of the parties.
Bambrick v. Bambrick, 165 So.2d 449 (Fla. 2nd DCA 1964)

Limiting collateral attacks to judgments void for lack of jurisdiction ensures the stability and finality of judgments.
Budd v. Tison, 47 So.2d 12 (Fla. 1950);
Mabson v. Christ, 96 Fla. 756, 119 So. 131 (1928).

Once a court overrules an objection to its jurisdiction and determines that it has jurisdiction, that decision is res judicata and precludes a collateral attack on the judgment even though the ruling may have been erroneous as a matter of law.
Archbold Health Services, Inc. v. Future Tech Business Systems, Inc., 659 So.2d 1204, 20 Fla. L. Weekly D1884 (Fla. 3rd DCA 1995), reh’g denied, (Sept. 27, 1995).

An aggrieved defendant must seek a reversal of the judgment in an appellate court of the state involved or, if unsuccessful there, in the Supreme Court of the United States. The defendant cannot later attack the judgment on jurisdictional grounds without first seeking these remedies, or if the judgment is affirmed, or if the appellate court of the Supreme Court of the United States declines to consider the case.
Archbold Health Services, Inc. v. Future Tech Business Systems, Inc., 659 So.2d 1204, 20 Fla. L. Weekly D1884 (Fla. 3rd DCA 1995), reh’g denied, (Sept. 27, 1995).

s. 295 Irregularities as to notice or process

A judgment may be subject to collateral attack as void where the court failed to acquire personal jurisdiction of a defendant due to a total lack of service and he or she received no notice of the proceedings.
State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649 (1936).

A court’s entry of a damage order without giving the defaulting party notice and opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of unliquidated damages violated that party’s due process rights.
Sanchez v. Brumm, 706 so.2d 886, 23 Fla. L. Weekly D380 (Fla. 3rd DCA 1998), reh’g denied, (Mar. 18, 1998).

However, collateral attack is not permissible where service, though irregular, gave the defendant notice of the proceedings.
Cone v. Benjamin, 157 Fla. 800, 27 So.2d 90 (1946);
State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649 (1936);
McMillon v. Harrison, 66 Fla. 200, 63 So. 427 (1913).

A determination by the court rendering the judgment that process was sufficient is reviewable by appeal, not collateral attack.
Curtis v. Albritton, 101 Fla. 853, 132 So. 677 (1931).

s.297 Voidable judgments

That a judgment may be voidable due to errors or irregularities, does not mean that it is necessarily subject to collateral attack,
Alegre v. Marine Motor Sales Corp., 228 F.2d 713 (5th Cir. 1956);
In re Begg’s Estate, 152 Fla. 277, 12 So.2d 115 (1943);
Dickinson v. Raichl, 120 Fla. 907, 163 So. 217 (1935);
Bambrick v. Bambrick, 165 So.2d 449 (Fla. 2nd DCA 1964).
Klausner v. Ader, 156 So.2d 193 (Fla. 3rd 1963), cert. dismissed, 165 So.2d 179 (Fla. 1964).

Regardless of how irregular the proceedings were
Tippins v. Belle Mead Development Corporation, 112 Fla. 372, 150 So. 719 (1933);
State v. Lehman, 100 Fla. 481, 129 So. 818 (1930);
Merrell v. City of St. Petersburg, 74 Fla. 194, 76 So. 699 (1917).

Or how erroneous the decision was.
Tervin v. State ex rel. Landis, 116 Fla. 633, 156 So. 627 (1934);
Torrey v. Bruner, 60 Fla. 365, 53 So. 337 (1910).

Rather, such a judgment can be avoided only by a direct act and by proper steps to have its invalidity declared.
Childs v. Boots, 112 Fla. 277, 152 So. 212 (1933).

Judgments have been held voidable and not subject to collateral attack for:

Pleading defects
Hepburn v. Chapman, 109 Fla. 133, 149 So. 196 (1933);
Catlett v. Chestnut, 107 Fla. 498, 146 So. 241, 91 A.L.R. 212  (1933);
Beverette v. Graham, 101 Fla. 566, 135 So. 847 (1931);
Bambrick v. Bambrick, 165 So.2d 449 (Fla. 2nd DCA 1964).

The unauthorized appearance by counsel
Bemis v. Loftin, 127 Fla. 515, 173 So. 683 (1937).

Evidentiary errors
Lyle v. Hunter, 102 Fla. 972, 136 So. 633 (1931);
Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926);
Ropes v. Goldman, 52 Fla. 630, 42 So. 322 (1906);
Thomas v. Williamson, 51 Fla. 332, 40 So. 831 (1906).

Defects as to the parties
Merchant’s & Mechanics’ Bank v. Sample, 98 Fla. 759, 124 So. 49 (1929), reh’g denied, 98 Fla. 759, 125 So. 1 (1929);
McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A.L.R. 731 (1926);
McBride v. Worley, 66 Fla. 564, 64 So. 235 (1914);
International Image Makers, Inc. v. Ronald Levitt Associates, Inc., 547 So.2d 265, 14 Fla. L. Weekly 1831 (Fla. 3rd DCA 1989).

such as misjoinder or
Forest Inv. Co. v. Aultman, 80 Fla. 790, 87 So. 43 (1920).

the failure to join a party.
Sample v. Ward, 156 Fla. 210, 23 So.2d 81 (1945)

Defects in the form of the judgment
State ex rel. Warren v. City of Miami, 153 Fla. 644, 15 So.2d 449 (1943);
State ex rel. Fulton Bag & Cotton Mills v. Burnside, 153 Fla. 599, 15 So.2d 324 (1943).

The court’s failure to record the judgment.
McGregor v. Kellum, 50 Fla. 581, 50 Fla. 589, 30 So. 697 (1905).

An irregular judgment may be collaterally attacked if the defect renders the judgment so unintelligible as to be void for uncertainty,
State ex rel. McGuire v. Mayo, 128 Fla. 699, 175 So. 732 (1937).

Or if the judgment concerns matters entirely outside the scope of the pleadings, since a presumption arises that the parties had no opportunity to be heard.
Cortina v. Cortina, 98 So.2d 334 (Fla. 1957);
Cravero v. Florida State Turnpike Authority, 91 So.2d 312 (Fla. 1956);
Krivitsky v. Nye, 155 Fla. 45, 19 So.2d 563 (1944);
Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927).

s.299 Fraud and perjury
A judgment may not be collaterally attack on the grounds of fraud by a party or privity to the action,
Dr. P. Phillips Co. v. Billo, 109 Fla. 316, 147 So. 579 (1933);
Lucy v. Deas, 59 Fla. 552, 52 So. 515 (1910);
Lee v. State Farm Mut. Auto. Ins. Co., 303 So.2d 349 (Fla. 3rd DCA 1974).

Or on the grounds of perjury,
Kessler v. Townsley, 132 Fla. 744, 182 So. 232 (1938);
Catlett v. Chestnut, 108 Fla. 475, 146 So. 547 (1933).

Absent fraud that affects the court’s jurisdiction and thereby renders the judgment void.
Dr. P. Phillips Co. v. Billo, 109 Fla. 316, 147 So. 579 (1933);
Lucy v. Deas, 59 Fla. 552, 52 So. 515 (1910);

B. BY INDEPENDENT ACTION

B1. In General

s. 300 Relief based on extrinsic fraud

A court has the power to entertain an independent action to relieve a party from a judgment or decree or to set aside a judgment or decree for a fraud upon the court.
Fla. R. Civ. P. 1.540(b).  ?? motion or independent action ??

Generally, fraud upon the court, as a statutory basis for setting aside a judgment refers to extrinsic fraud, not intrinsic fraud.
Lefler v. Lefler, 776 So.2d 319, 26 Fla. L. Weekly D98 (Fla. 4th DCA 2001), reh’g denied, (Feb. 5, 2001).

Thus, this rule does not provide for two separate grounds of relief, but only one that requires a showing of extrinsic fraud.
DeClaire v. Yohanan, 453 So.2d 375 (Fla. 1984);
Jackson Grain Co. v. Lee, 150 Fla. 232, 7 So.2d 143 (1942);
Palm Beach County v. Boca Development Associates, Ltd., 485 so.2d 449, 11 Fla. L. Weekly 533 (Fla. 4th DCA 1986), related reference, 502 So.2d 975 (Fla. 4th DCA 1987)
Extrinsic fraud means the prevention of an unsuccessful party from presenting his or her case, by fraud or deception practiced by the adversary, such as by keeping the opponent away from court, falsely promising a compromise, ignorance of the adversary about the existence of the suit or the acts of the plaintiff, fraudulent representation of a party without his or her consent and connivance in his or her defeat.
DeClaire v. Yohanan, 453 So.2d 375 (Fla. 1984);
Alexander v. First Nat. Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973).

Where a party has an opportunity to discover the facts that are alleged to have been the basis of the extrinsic fraud, an independent action is not available.
Arrieta-Gimenez v. Arrieta-Negron, 551 So.2d 1184, 14 Fla. L. Weekly (Fla. 1989), answer to certified question conformed to, 896 F.2d 16 (1st Cir. 1990).

No extrinsic fraud existed where the complainant had full access to discovery and every right to reject the allegedly fraudulent settlement offer until she could explore the extent of her father’s holding in Puerto Rico and thus discover the fraudulent behavior.
Arrieta-Gimenez v. Arrieta-Negron, 551 So.2d 1184, 14 Fla. L. Weekly (Fla. 1989), answer to certified question conformed to, 896 F.2d 16 (1st Cir. 1990).

s.301 Types of extrinsic fraud

Relief against a judgment may be secured where it was obtained through:

Collusion
State ex rel. Warren v. City of Miami, 153 Fla. 644, 15 So.2d 449 (1943);
State ex rel. Fulton Bag & Cotton Mills v. Burnside, 153 Fla. 599, 15 So.2d 324 (1943);
Hall v. Hall, 93 Fla. 709, 112 So. 622 (1927).

Misrepresentation
Reybine v. Kruse, 139 Fla. 577, 190 So. 711 (1939).

Concealment of the proceeding
Allison v. Handy Andy Community Stores, 116 Fla. 574, 156 So. 521 (1934);

Concealment of the satisfaction of the underlying claim.
Edenfield v. Sayre, 81 Fla. 367, 88 So. 607 (1921);

A party who participates in the fraud alleged in attacking a final decree cannot thereafter seek redress from the consequences of that fraud.
Fla.Jur2d Judgments and Decrees s. 308

Fraud by the opposing party in the court’s acquiring of jurisdiction may also constitute extrinsic fraud warranting relief from judgment.
Allison v. Handy Andy Community Stores, 116 Fla. 574, 156 So. 521 (1934);
Edenfield v. Sayre, 81 Fla. 367, 88 So. 607 (1921);
Lewter v. Hadley, 68 Fla. 131, 66 So. 567 (1914).

Attack on personal service as having been obtained by fraud or trickery, 98 A.L.R. 2d 551.

Although conduct by an attorney that amounts to connivance at the defeat of his or her own client constitutes extrinsic fraud,
Daugherty v. Daugherty, 456 So.2d 1271 (Fla. 1st. DCA 1984), petition for review denied, 464 So.2d 554 (Fla. 1985).

Legal malpractice by that attorney does not (constitute extrinsic fraud)
Magula v. Infante, 616 So.2d 1191, 18 Fla. L. Weekly D1029 (Fla. 4th DCA 1993).

s.302 Intrinsic fraud

Intrinsic fraud cannot be alleged in an independent action.
DeClaire v. Yohanan, 453 So.2d 375 (Fla. 1984);
Fair v. Tampa Elec. Co., 158 Fla. 15, 27 So.2d 514 (1946);
Hamilton v. Flowers, 134 Fla. 328, 183 So. 811 (1938);
Dr. P. Phillips Co. v. Billo, 109 Fla. 316, 147 So. 579 (1933);
Johnson v. Wells, 72 Fla. 290, 73 So. 188 (1916);
Zuckerman v. Alex Hofrichter, P.A., 630 So.2d 210, 19 Fla. L. Weekly D5 (Fla. 3rd DCA. 1993)

Intrinsic fraud applies to fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried.
DeClaire v. Yohanan, 453 So.2d 375 (Fla. 1984);
Johnson v. Wells, 72 Fla. 290, 73 So. 188 (1916);
Zuckerman v. Alex Hofrichter, P.A., 630 So.2d 210, 19 Fla. L. Weekly D5 (Fla. 3rd DCA. 1993)
American Calmal Corp. v. Alderman, 264 So.2d 454 (Fla. 3rd DCA 1972).

Presenting false evidence or false testimony in a case constitutes intrinsic fraud
State v. Glover, 564 So.2d 191, 15 Fla. L. Weekly D1715 (Fla. 5th DCA 1990)

Because the court received and considered that false evidence in the original proceeding.
Fair v. Tampa Elec. Co., 158 Fla. 15, 27 So.2d 514 (1946);
Johnson v. Wells, 72 Fla. 290, 73 So. 188 (1916);
Lucy v. Deas, 59 Fla. 552, 52 So. 515 (1910);
Wescott v. Wescott, 444 So.2d 495 (Fla. 2nd DCA 1984).
 
s. 303 Errors and irregularities in previous action

An independent action may not be based merely on errors and irregularities in the previous action, such as:

Erroneous or irregular judgments
Adams v. Reynolds, 101 Fla. 271, 134 So.45 (1931);
Edenfield v. Sayre, 81 Fla. 367, 88 So. 607 (1921);
Day v. Hurchman, 65 Fla. 186, 61 So. 445 (1913);
Order of United Commercial Travelers of America v. Bell, 62 Fla. 565, 56 So. 910 (1911);
Peacock v. Feaster, 52 Fla. 565, 42 So. 889 (1906);
Goldfarb v. J.A. Cantor Associates, Inc., 123 So.2d 50 (Fla. 3rd DCA 1960).

Errors in rulings on the pleadings
Order of United Commercial Travelers of America v. Bell, 62 Fla. 565, 56 So. 910 (1911).

Errors in admitting testimony.
Order of United Commercial Travelers of America v. Bell, 62 Fla. 565, 56 So. 910 (1911).
Lucy v. Deas, 59 Fla. 552, 52 So. 515 (1910);

Errors based on the negligence or incompetence of the complainant’s counsel
Sommers v. Colourpicture Pub., 150 Fla. 659, 8 So.2d 281 (1942);
Peacock v. Feaster, 52 Fla. 565, 42 So. 889 (1906);

Or of his or her guardian.
Day v. Hurchman, 65 Fla. 186, 61 So. 445 (1913);


s.304 Void Judgments

A void judgment is subject to vacation through an independent action.
Adams v. Reynolds, 101 Fla. 271, 134 So.45 (1931);
King v. Dekle, 53 Fla. 940, 43 So. 586 (1907).

A complainant may obtain relief from a judgment that is void for lack of jurisdiction,
Rosenstone v. Johnston, 93 Fla. 319, 11 So. 630 (1927);
Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926);

Such as a lack of jurisdiction over the person,
Green v. Hood, 98 So.2d 488 (Fla. 1957);
Edenfield v. Sayre, 81 Fla. 367, 88 So. 607 (1921).

And for lack of notice or actual service of process.
Allison v. Handy Andy Community Stores, 116 Fla. 574, 156 So. 521 (1934);
Edenfield v. Sayre, 81 Fla. 367, 88 So. 607 (1921);
Lewter v. Hadley, 68 Fla. 131, 66 So. 567 (1914).

However, irregular service which gave the defendant notice of the pending proceeding, does not render the judgment void and subject to attack by an independent action.
Order of United Commercial Travelers of America v. Bell, 184 F. 298 (C.C.A. 5th Cir. 1911).
Quigley v. Cremin, 94 Fla. 104, 103 So. 892 (1927);
Walker v. Carver, 93 Fla. 337, 112 So. 45 (1927);
McMillon v. Harrison, 66 Fla. 200, 63 So. 427 (1913).

Where the return of the sheriff shows service of process on the defendant, an attack on the judgment through an independent action is usually precluded.
Walker v. Carver, 93 Fla. 337, 112 So. 45 (1927);

B2. Requisites

s.305 Types of available relief

Forms of relief obtainable through an independent action include:

Enjoining the enforcement of the judgment
Sherbill v. Miller Mfg. Co., 89 So.2d 28, 60 A.L.R.2d 1445 (Fla. 1956);
State ex rel. Neafie v. Butler, 151 Fla. 686, 10 So.2d 572 (1942);
Tippins v. Belle Mead Development Corporation, 112 Fla. 372, 150 So. 719 (1933);
Malsby v. Gamble, 63 Fla. 508, 57 So. 687 (1912).

Ordering an accounting
State ex rel. Neafie v. Butler, 151 Fla. 686, 10 So.2d 572 (1942);

Restoring the status quo
Gamble v. Gamble Holding Corp., 120 Fla. 340, 162 So. 886 (1935).

Determining whether a judgment was rendered in an individual or representative action, so as to settle the extent of the lien under the judgment.
Willard v. Barry, 113 Fla. 402, 152 So. 411 (1933).

Declaring a judicial sale invalid.
Smith v. Hunter, 115 Fla. 698, 155 So. 805 (1934);
Brauer v. Paddock, 103 Fla. 1175, 139 So. 146 (1932);


s.306  Effect of available appellate review

An independent action may not be available where the complainant has an adequate remedy through appellate review.
Sommers v. Colourpicture Pub., 150 Fla. 659, 8 So.2d 281 (1942);
Nelson v. Hansard, 143 Fla. 898, 197 So. 513 (1940);
Allison v. Handy Andy Community Stores, 106 Fla. 574, 143 So. 263 (1932);

s. 307 Effect of availability of defense in original action

The party seeking relief through an independent action must show that he could not avail himself of the defense, or, if that defense could have been made there, that the party was deprived of it by being denied an opportunity to present it.
State ex rel. Neafie v. Butler, 151 Fla. 686, 10 So.2d 572 (1942);
Nelson v. Hansard, 143 Fla. 898, 197 So. 513 (1940);
Aetna Cas. & Sur. Co. V. McDougall Co., 111 Fla. 408, 150 So. 632 (1933);
Rosenstone v. Johnston, 93 Fla. 319, 111 So. 630 (1927);
Sottile v. Gaines Const. Co., 281 So.2d 558 (Fla. 3rd DCA 1973) (abrogation on other grounds recognized by Edenfield v. B & I Contractors, Inc., 624 So.2d 389, 18 Fla. L. Weekly D2105 (Fla. 2nd DCA 1993).

Where the defense of extrinsic fraud is raised by the party and considered by the court in the original action, it may not be relitigated in an independent action attacking the judgment.
American Bakeries Co. v. Vining, 13 F. Supp. 323 (S.D. Fla. 1935), aff’d 80 F.2d 932 (C.C.A. 5th Cir. 1935);
Gaines v. Russ, 60 Fla. 317, 53 So. 113 (1910).


s.308 Freedom from fault

A party seeking relief through an independent action from the enforcement of a judgment must be without fault
Peacock v. Feaster, 52 Fla. 565, 42 So. 889 (1906);

And may not have participated in the complained-of fraud or collusion.
Stehli v. Thompson, 151 Fla. 566, 10 So.2d 123 (1942);
Hall v. Hall, 93 Fla. 709, 112 So. 622 (1927).

The deprivation of the complainant’s opportunity to assert his or her rights or make a defense may not have been caused by the complainant’s own negligence.
Aetna Cas. & Sur. Co. V. McDougall Co., 111 Fla. 408, 150 So. 632 (1933);
Day v. Hurchman, 65 Fla. 186, 61 So. 445 (1913);
Peacock v. Feaster, 52 Fla. 565, 42 So. 889 (1906);

Thus a party seeking relief through an independent action must do so with clean hands.
Hall v. Hall, 93 Fla. 709, 112 So. 622 (1927).

If the complainant acknowledges that part of the judgment is owed, as a condition to relief, the complainant must offer to pay that acknowledged amount.
Edenfield v. Sayre, 81 Fla. 367, 88 So. 607 (1921);

s.309 Pleading

The complaint in an independent action challenging a judgment must specify:

The relief sought

The facts setting forth the basis for the relief

A meritorious defense to the underlying claim.


Where relief is sought by an independent action, the independent action is not a continuation of the action in which the underlying judgment was entered.

All necessary parties to the judgment attacked must be made parties to the suit.


s.310 Time and location of action

An independent action for extrinsic fraud may be brought more than one year after the judgment was entered.

Although it has been held that an independent suit could be brought in a court other than that in which the judgment had been entered,

A later appellate court has held that, at the least, an attack upon a conveyance of real property through an independent action, which conveyance was made in compliance with a court order or judgment, must be made in the court that ordered the conveyance.

s.311 Parties entitled to relief; parties against whom relief may be granted.

Relief may be granted in favor of and against parties to the original action

Who did not participate in fraud on the court.

Third parties may likewise seek and obtain relief from a judgment through an independent action, provided that they have a sufficient interest in that judgment.

C. RELIEF BY MOTION

C1. In General

s.312 Generally

Once a judgment becomes final, it can only be modified by a proper independent action or by an authorized motion.
Smith-Adam v. Komer, 673 So.2d 991, 21 Fla. L. Weekly D1258 (Fla. 4th DCA 1996).

On a motion and upon such terms as are just, a court may grant a party, or that party’s legal representative, relief from a final judgment or decree
on certain specified grounds.
Fla. R. Civ. P. 1.540(b)

This authority extends to all actions of a civil nature and all special statutory proceedings in the circuit and county courts except those to which the Small Claim Rules, Probate Rules or Family Law Rules of Procedure apply.
Fla. R. Civ. P. 1.010.

The trial court’s authority to modify, amend, or vacate a final judgment is limited to the time and manner provided by rule or statute.
Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 11 Fla. L. Weekly 890 (Fla. 3rd DCA 1986).

Because the civil procedure rule authorizing relief by motion is expressly noted to be substantially the same as the federal rule offering similar relief from a judgment,

The background of the federal rule and the construction given it by federal courts may be cited as authority for the correct interpretation of the Florida rule.


A motion for relief from judgment not affect the finality of the judgment or decree or suspend its operation.
Fla. R. Civ. P. 1.540(b)

The repeal, after the entry of a final judgment awarding punitive damages, of a statute providing that a portion of any punitive damages award must be paid to the state of Florida, did not provide a valid ground for relief from a judgment awarded before the repeal was effective.

s.313 Types of relievable judgments

The rule permitting relief by motion from a judgment applies only to final judgments.

An interlocutory judgment remains under the control of the court, which may modify or rescind the judgment at any time before that judgment becomes final.

However, once the judgment becomes final, then it is subject to modification only by a motion for relief from it.

Although a court may not ordinarily set aside a consent judgment without the agreement of the parties thereto, it may do so where the public interest is involved and good cause is shown.

s.314 Effect of appeal of judgment

A trial court lacks jurisdiction to proceed on a motion for relief from a judgment once appellate jurisdiction in invoked.

The appellate court may, however, on a case-by-case basis,

Permit the trial court to hear a motion for relief from a judgment.

Once the appellate court affirms the judgment, that judgment becomes impervious to further attack unless the opinion of the appellate court expressly leaves open the issue or issues pertaining to the validity of the judgment, or if the judgment is declared to be void.

s.315 Authority of successor judges

Where the facts remain unchanged, a successor judge may not reverse or modify the final orders or discretionary rulings of his or her predecessor

Absent some special circumstances, such as mistake or fraud,

Or some other legally sufficient grounds for relief under the Rules of Civil Procedure,

That were not presented to, or considered by, his or her predecessor.

s.316 Persons entitled to and subject to relief

The parties that may seek relief from a final judgment include a party or that party’s legal representative,

Or a third party whose rights were directly and injuriously affected by a fraudulently obtained judgment.

A third party may also seek to vacate the judgment through an independent collateral attack in which he or she may show fraud, collusion, lack of jurisdiction, or that he or she should have received notice of an intended stipulated judgment where the enforcement of that judgment would adversely affect their substantive rights.

A codepositor in a joint bank account may seek relief from a garnishment judgment where the codepositor was abroad at the time of the action and had justifiably assumed that the judgment debtor would reveal the co-depositor’s interest in the account, yet he or she failed to do so.

A trial court may also act on its own motion in granting relief from a judgment.
Fiber Crete Homes, Inc. v. Division of Administration, State Dept. of Transp., 315 So.2d 492 (Fla. 4th DCA 1975);
In re Weymer’s Estate, 199 So.2d 495 (Fla. 4th DCA 1967), cert. discharged, 207 So.2d 673 (Fla. 1968);
Polster v. General Guaranty Mortg. Co., 180 So.2d 484 (Fla. 1st DCA 1965).

s.317 Right of third party to contest motion

An innocent third party may contest the right of the parties to the judgment to have that judgment vacated,

Particularly where the moving parties were not diligent in seeking relief.

However, a third party has no standing to contest an action to set aside a judgment, where the parties to the action agree to the judgment’s vacation, on the grounds that the third party, who had received a summary judgment based on the original judgment might be adversely affected, since the third party’s interest is only potentially affected by the vacation of the judgment.


C2. Grounds for motion
C2a. In general

s.318  Generally

A court may grant relief from a final judgment or decree for the following reasons:

Mistake, inadvertence, surprise, or excusable neglect.

Newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial or hearing.

Fraud, misrepresentation, or other misconduct of an adverse party.

That the judgment or decree is void.

That the judgment or decree has been set aside, 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.

A court may only grant relief from a judgment by motion where it finds the existence of at least one of these grounds for relief.

The trial court could not grant relief from a judgment in an abundance of caution and fairness although it found that no fraud or other misconduct by a party had established the existence of a legal ground to grant the motion.

Moreover, the rule allowing the court to vacate a final judgment does not contemplate relief if the moving party has merely suffered prejudice as a result of his or her own inaction. Thus, a plaintiff’s alleged inability to hear testimony even when the court permitted him to sit in front of the witness stand did not entitle the plaintiff to relief from judgment where the plaintiff never complained about the inability to hear in front of the stand.

The facts of each case are of singular importance in determining whether or not grounds exist for providing relief from a judgment.
Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla. 1972);
Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3rd DCA 1978).
 
s.319 Mistake

The Rules of Civil Procedure authorize relief from a final judgment for mistake.

The type of mistake envisoned by the rule is the type of honest and inadvertent error made in the ordinary course of litigation,

Usually made by either a party of the court,

And includes mistakes that result from oversight, neglect, or accident.

A mistake of a witness in his or her substantive testimony is not the type of mistake that is the basis of a motion for relief from a judgment.

Thus, not every mistake will warrant relief,

And the court’s jurisdiction under this rule extends only to correct clerical or secretarial substantive errors.

A party was entitled to relief based upon a secretary’s error in completing a voluntary dismissal with prejudice that included all the defendants rather than just a single defendant, as intended.

A party may not be relieved of a tactical mistake

Or a mistaken view of the law.

Likewise, the failure of an attorney to advise his or her clients of a conflict of interest is not the sort of mistake contemplated by the rule.

A stipulated final judgment is in the nature of a contract, and as such, it can be set aside on the basis of a unilateral mistake.

Thus, a party’s performance under a contract is not excused on the basis of unilateral mistake when the mistake is the result of the party’s own negligence and lack of foresight, or the other party has relied upon his or her performance so that rescission would be inequitable.

s.320 Substantive mistakes in judgment

In addition to errors in a judgment caused by accidental slips or omissions,

A court may correct substantive mistakes in a judgment.

However, because a motion for relief is not a substitute for appellate review, a trial court may not relieve a party from a judgment on the grounds of a judicial error.

A plaintiff’s assertion that the trial judge legally erred in dismissing the action could not be addressed in a motion for relief from the judgment.

The proper remedy for the violation of the right to jury trial is by appeal, and not by a motion to vacate judgment.

A trial court’s failure to require any mitigation of the landlord’s damages following the tenant’s breach, when the trial court entered a judgment for rent owing over the full remaining term of the lease with no credit to the tenant for rent that the landlords were receiving from a third party, might have provided a legitimate ground for appeal, but was not an appropriate ground for granting the tenant’s request for relief from the unappealed judgment.

The key factor is determining whether a judgment may be remedied is whether or not the court reached a decision in the intentional or purposeful exercise of its judicial function.
If the pronouncement reflects a deliberate choice on the part of the court, the act is judicial.

Thus a judicial error, such as a mistaken view of the law is not one of the circumstances contemplated by the rule that permits a grant of relief from a judgment on the basis of a mistake.

The types of mistakes subject to correction under this rule are those that result from oversight, neglect or accident, not a mistaken view of the law.

While a court may vacate a final judgment where it inadvertently entered a written order counsel had prepared that misrepresented the court’s oral ruling,

It may not do so where the court signed the order based on the substantive arguments of counsel.

A judicial error can be corrected through an appeal or through a motion for rehearing.
 
s.321 Types of relievable errors in a judgment.

A court may correct or vacate a judgment on a motion for relief where –

-   the judgment in a foreclosure action failed to correctly state the proper legal description of property to exclude property owned by a third party
-   the judgment improperly stated the amount of a party’s liability
-   the court failed to specify that the judgment creditor must return excess proceeds to the judgment debtor upon collection of promissory note.

Because the question of whether a trial judge should have disqualified him or herself because of facts which might lead to the appearance of partiality is a question of fact, not law, the judge’s decision is subject to a motion for relief on the grounds that the judge, in not disqualifying him or herself, made a mistake.

s.322 Surprise

Relief may be had from a final judgment because of surprise.

A surprise may occur where a person first finds out about a class action after a judgment has been entered against the class of which he or she was a member.

Surprise may also be found based on the failure of the court to observe an established custom of notifying all attorneys when the docket was to be called.

s.323 Newly discovered evidence

A court may relieve a party from a final judgment on the ground of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing.
Although a mistake of a witness in giving substantive testimony does not constitute a basis for relief from a judgment, if such evidence later comes to light, a diligent party may obtain relief based on newly discovered evidence.

Although some courts have suggested that stricter requirements apply to a motion for relief from a judgment based on newly discovered evidence than to a motion for a rehearing on that ground,

Several cases have applied the requirements for a rehearing as the standard to affirm denials of motions for relief.

These requirements require that it must appear that the evidence:

Would probably change the result if the new trial is granted

Was discovered since the trial

Could not have been discovered before the trial by the exercise of due diligence

Is material to the issues

Is not merely cumulative or impeaching


Thus, the judgment may not be vacated where the plaintiff fails to present new material evidence that was not discoverable at the time that final summary judgment was entered.

An appellate court decision issued after the trial does not constitute newly discovered evidence,

Nor does evidence that was contained in the public records at the time of trial.

Newly discovered evidence purporting to show other forgeries by the granddaughter of the signatures of her grandmother and the grandmother’s husband, which evidence was unavailable at the time of the entry of summary judgment against the grandmother and her husband in their action to set aside a warranty deed which purported to transfer a remainder interest in their property to the granddaughter, was sufficient to preclude the disposition of the case, insofar as the forgery issue was concerned, by summary judgment, and thus, the trial court should have granted a motion for relief from the judgment seeking relief based on newly discovered evidence.

A finding that an affidavit reflecting budgetary requests from the state Department of Health did not present newly discovered evidence, however, since these budgetary requests were obviously within the party’s control at the time of trial.

s.324 Fraud misrepresentation, or other misconduct of adverse party.

A court may relieve a party or his representative from a final judgment for fraud, misrepresentation, or other misconduct by an adverse party.

Relief from a judgment should thus be granted to a party whose attorney has relied on the misrepresentations of the other party’s attorney.

Furthermore, the rule for relief from final judgment for fraud, misrepresentation or misconduct by adverse party does not contemplate only an affirmative misrepresentation by an adverse party, but an omission of material fact is equally proscribed by the rule, for it constitutes the misconduct of an adverse party.

Extrinsic fraud involves conduct which is collateral to the issues tried in a case and occurs when the defendant has somehow been prevented from participating in a cause.

Under some circumstances, the unauthorized action of counsel in settling a case without permission or a coparty’s action in perpetrating a fraud constitutes extrinsic fraud.

A motion for relief from a judgment based on fraud, misrepresentation, or misconduct is applicable to judgments entered pursuant to an offer of judgment.

Misconduct includes any conduct by a party that prevents an opposing party from fairly presenting his or her own claim or defenses, such as the giving or introducing of false testimony or other evidence.

A defendant alleged a colorable claim for vacating a judgment on the basis of misconduct where he alleged that plaintiff offered false testimony at trial on the issue of damages.

A plaintiff who pled guilty to perjury for having lied at pre-trial deposition, was guilty of fraud in securing a judgment, and thus the judgment could not be set aside, although the plaintiff claimed there could be no fraud found since he corrected his testimony at trial by admitting his deposition testimony was untrue, as plaintiff stated at trial that his deposition statements were untrue under certain circumstances, and thus the jury was misled.

However, no fraud or misrepresentation justifying relief from a judgment existed where the plaintiff’s supporting affidavits overstated the amount due on the mortgage, since an arguable miscalculation may constitute a defense but does not permit setting aside a regularly entered judgment.

Misconduct justifying relief occurred where the defendant’s attorney reached a stipulation on a partial satisfaction of judgment, but then drafted the stipulation so as to eliminate the plaintiff’s right to pursue the remaining portion of the award against the defendant, and after it became a final judgment, refused to agree to an amendment that would have truthfully stated the stipulation reached by the parties.
Fraud by a party in inducing a witness to commit perjury in relation to a critical fact issue warrants relief from a final judgment based on fraud.

s.325 Failure to notify interested parties

The failure to notify the interested parties to an action may constitute misconduct by an adverse party justifying relief from a judgment.

s.326 Void judgments

Relief by motion is available from a void judgment.

Where the judgment or decree is void as a matter of law, the court has no discretion to act except to give the appropriate relief.

A judgment is void where the court rendering the judgment lacked jurisdiction,

As for example where one party lacked proper notice that the other party applied to the court for a final judgment.

Thus, a judgment is void as violative of due process where the defendant was not properly served with:

A copy of the summons and complaint

Notice of a hearing or trial

Notice of the entry of an order of dismissal

Notice of the entry of an order of incompentency.

Moreover, a default judgment is voidable where the plaintiffs attempt constructive service of process on the defendant but do not strictly comply with the statutory requirements required to obtain jurisdiction over a defendant by publication.

However, a judgment was not void for lack of proper notice where the final judgment indicated that copies of the judgment were mailed to the counsel for both parties and an affidavit filed by the trial judge’s secretary stated that the standard practice was to mail a copy of all court orders to the counsel for both parties, even though the defendant’s counsel denied receiving the judgment.

A defendant may not raise the failure to join an indispensable party as a grounds for relief under this provision, because this defense is not a jurisdictional matter that can be raised at any time.


s.329 Inadvertence or Excusable Neglect

In advertence or excusable neglect may provide the basis for relief from judgment.
s.321

The neglect of a party’s counsel amounts to excusable neglect sufficient to warrant relief from a judgment only where it results from generally accepted practices and amenities among the local bar.

An attorney’s actions fell below generally accepted practice, and therefore did not constitute excusable neglect for purposes of relief from judgment, where the attorney omitted a key contractual provision in an offer of judgment.

Excusable neglect may not be based on counsel’s erroneous advice,

Counsel’s mistaken view of the law,

Or counsel’s failure to raise an issue or offer evidence in the case.

Excusable neglect must be proven by sworn statements or affidavits.

s.330 Counsel’s failure to file or appear

For the purpose of obtaining relief from a judgment, an attorney’s excusable neglect as to the failure to file a paper or to appear may be based on an attorney’s:

Failure to attend a summary judgment hearing.

Failure to note a date properly on the calendar.

Failure to understand or calculate the time limit for filing a response.

Reliance on incorrect statements of court personnel.

Failure to receive notices due to the court’s error.

By contrast, an attorney’s simple forgetfulness or neglect as to a date may not constitute an excusable neglect,

Particularly where the attorney failed timely to act on more than one occasion in the case.

The attorney failed to show excusable neglect where although he had received documents notifying him of the trial date, he had failed to file a response to complaint until the day of the hearing on a default, after the default was lifted, he appeared at the final hearing without witnesses or his client, claiming that his secretary inadvertently failed to note on his calendar that the case was set for trial, and he presented no testimony.

A party is entitled to relief from a judgment based on the attorney’s failure to appear at a noticed hearing or otherwise represent the party where the party had no notice that the attorney would not appear.

s.331 Counsel’s actions without client authority
Judgment 143(10), 368

A client may be entitled to relief from a final judgment where his counsel acted without the client’s authority.
St. Lucie Estates v. Palm Beach Plumbing Supply Co., 101 Fla. 205, 133 So. 841 (1930);
Vantage Broadcasting Co. v. WINT Radio, Inc., 476 So.2d 796, 10 Fla. L. Weekly 2367 (Fla. 1st DCA 1985), related reference, 496 So.2d 969, 11 Fla. L. Weekly 2298 (Fla. 1st DCA 1986)

A client was entitled to relief from the judgment where its counsel failed to follow its instructions in reaching a settlement agreement with the opposing counsel, since the client had not given the counsel clear and unequivocal authority to settle the claim.
Vantage Broadcasting Co. v. WINT Radio, Inc., 476 So.2d 796, 10 Fla. L. Weekly 2367 (Fla. 1st DCA 1985), related reference, 496 So.2d 969, 11 Fla. L. Weekly 2298 (Fla. 1st DCA 1986)

Ratification of attorney’s unauthorized compromise of action, 5 A.L.R. 5th 56.


C3. Procedure

s. 333 Time for filing motion
Judgment 386

Generally, motions for relief from a final judgment must be made within a reasonable time

But when the motion is made on the ground of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence which by due diligence could not have  been discovered in time to move for a new trial or rehearing, or of fraud, misrepresentation, or other misconduct of an adverse party, the motion may not be made more than one year after the judgment or decree was entered or taken.

See s.287 for Laches and Due diligence.
The one-year limitation applies to motions based on intrinsic fraud, not motions based on extrinsic fraud.

The time for filing the motion for relief begins to run from the entry of the judgment, not from the order approving the settlement upon which the judgment was based,

Nor from the resolution of an appeal,

Nor, where fraud is alleged, from the date of the discovery of the fraud.


The trial court may not grant relief where the motion is not timely filed

And may not extend the time for making the motion for relief under this rule.

However, the appellate court may grant a party leave to file a motion for relief where jurisdiction over the case had been in that court for part of the one-year limitation period.

s.334 Tolling of limitation period for filing motion
Judgment 386

The act of filing of an appeal does not toll the one-year limitation for filing a motion for relief from judgment.

An appeal that was dismissed as untimely filed does not toll the time for filing a motion for relief from a judgment.

The time limitation may be tolled, however, by the filing in the appellate court of a motion to remand the cause to the trial court for its consideration of a motion for relief.

The service of a motion for rehearing within the time limitations set by the Rules of Civil Procedure (1.530(b)) also tolls the one-year time period until such time as the motion for rehearing has been disposed of by the trial court.

Although the granting of relief tolls the one-year limitation period from the time of the entry of the order granting relief to the termination of any appeal challenging that order,

A court’s denial of a motion for relief does not toll the limitation period for the filing of another motion for relief.

s.335 Ground for relief not subject to time limitation
Judgment 386(3)

The types of motions for relief that are not subject to a one-year time limitations are those where:  1.540(b)(4),(5)

the judgment or decree is void

he 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.

It is no longer equitable that the judgment or decree have prospective application.

A motion brought on equitable grounds is still subject, however, to both the reasonable time limitation of the Civil Procedure Rules

As well as the equitable doctrine of laches.

A motion for relief from a judgment on the grounds that it is no longer equitable that the judgment have prospective application was not filed within a reasonable time, when it was made five and one-half years after the movant first became aware of the impossibility of its performance.

However, because a void judgment can never become valid, motions based on that ground are not subject to the limitations that they be brought within a reasonable time.
Whigham v. Whigham, 464 So.2d 674, 10 Fla. L. Weekly 624 (Fla. 5th DCA 1985), petition for review denied, 475 So.2d 696 (Fla. 1985)

Similarly, a defendant who had not been served with process was entitled to have a final judgment vacated, even if the motion was unreasonably delayed in that the defendant did not file his motion to vacate until nine months after learning of the judgment, because a motion to vacate a void judgment under the rule governing relief from judgments may be made at any time.
M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 25 Fla. L. Weekly D2277 (Fla. 4th DCA 2000), reh’g denied, (Nov. 14, 2000).

Judgments that can be attacked on motion at any time include judgments entered against a defendant without service of process

And decrees or judgments procured through fraud, collusion, deceit, or mistake,

As well as judgments tainted by extrinsic fraud or fraud upon the court.

Similarly, relief from a judgment entered without notice to a party may be granted at any time.

Thus, a court may relieve a party on motion from a void judgment at any time.
s.336 Courts where motion must be brought

The authority to vacate a judgment is vested in the court that rendered the judgment.

A circuit court in a county other than the one in which a judgment had been entered could not set aside a judgment on the grounds of fraud and duress, because the rule that provides relief from a judgment by motion permits only the court that rendered the judgment to set it aside.

s.337 Sufficiency of pleading

Plaintiffs who seek to vacate a judgment must allege one of the limited grounds specifically required to vacate a final judgment, such as mistake, inadvertence, or surprise.

However, the motion need not refer to the specific rule of Civil Procedure, since the court will construe the motion as one for relief from a judgment so long as it states sufficient grounds for that relief.

Similarly, a pleading is considered based on what it is in substance, even though it is mislabeled, and its character will depend upon its grounds or contents, not on its title.

If a party pleads fraud or misrepresentation with particularity and how it affected the judgment, the party is entitled to an evidentiary hearing on its motion for relief from the judgment.
St. Surin v. St. Surin, 684 So.2d 243, 21 Fla. L. Weekly D2600 (Fla. 2nd DCA 1996).

The grounds for a motion for relief may either be established by a sworn pleading or by testimony under oath in support of an unsworn motion.
Hall v. Byington, 421 So.2d 817 (Fla. 4th DCA 1982).

If a sworn affidavit is included in the motion, it must contain facts by which the court can determine the sufficiency of the grounds raised.


s.338 Preclusion of issues in motion

A party may not raise issues in a motion for relief from judgment that –
 
Were litigated in a motion for rehearing.
Sloan v. Sloan, 393 So.2d 642 (Fla. 4th DCA 1981).

Were denied by an appellate court in an appeal from the judgment.
Glatstein v. City of Miami, 391 So.2d 297 (Fla. 3rd DCA 1980).

Were raised in an earlier motion for relief.
Steeprow Enterprises, Inc. v. Lennar Homes, Inc., 590 So.2d 21, 16 Fla. L. Weekly D2959 (Fla. 4th DCA 1991);
Crocker Investments, Inc. v. Statesman Life Ins. Co., 515 So.2d 1305, 12 Fla. L. Weekly 2589 (Fla. 3rd DCA 1987);
Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971).

Could have been raised by motion for rehearing or upon appeal from the final judgment.
Sacco v. Slavin, 641 So.2d 955, 19 Fla. L. Weekly D1856 (Fla. 3rd DCA 1994).

A motion for relief also may not be based on grounds that could have been raised in an earlier motion for relief,
Purcell v. Deli Man, Inc., 411 So.2d 378 (Fla. 4th 1982).

Or could have been pleaded in defense of the action.
Sawyer v. Gustason, 96 Fla. 6, 118 So. 57 (1928);
Miami Nat. Bank v. Sobel, 198 So.2d 841 (Fla. 3rd DCA 1967), cert. dismissed, 207 So.2d 687 (Fla. 1967);
Mid-State Homes, Inc. v. Ritchie, 181 So.2d 725 (Fla. 1st DCA 1966);
Shongut v. Malnik, 173 So.2d 708 (Fla. 3rd DCA 1965).

s.339 Necessity and scope of evidentiary hearing

When a motion for relief from a judgment is timely filed and is supported by an affidavit setting out the facts relied upon for relief, the court may not deny the motion without first holding an evidentiary hearing.
Bartlett & Sons Co. v. Pan American Studios, 144 Fla. 531, 198 So. 195 (1940);
Goudie v. Garcia, 584 So.2d 100, 16 Fla. L. Weekly D2007 (Fla. 3rd DCA 1991);
Patricia Russell Designs, Inc. v. Gans, 277 So.2d 801 (Fla. 3rd DCA 1973).

In other words, a motion for relief from a judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege a colorable entitlement to relief.
In re Guardianship of Schiavo, 800 So.2d 640, 26 Fla. L. Weekly D2518 (Fla. 2nd DCA 2001), reh’g denied, (Nov. 1, 2001) and reh’g denied, (Nov. 7, 2001) and review denied, 816 So.2d 127 (Fla. 2002);
Dynasty Exp. Corp. v. Weiss, 675 So.2d 235, 21 Fla. L. Weekly D1425 (Fla. 4th DCA 1996).

Although a trial court is accorded broad discretion in determining motions for relief from a final judgment on the showing of fraud by an adverse party, an evidentiary hearing is necessary if the essential facts of the fraud are pleaded with specificity
Crowley v. Crowley, 678 So.2d 425, 21 Fla. L Weekly D1784 (Fla. 4th DCA 1996)

And not merely as legal conclusions.
Dynasty Exp. Corp. v. Weiss, 675 So.2d 235, 21 Fla. L. Weekly D1425 (Fla. 4th DCA 1996).

The nonprevailing party was entitled to an evidentiary hearing prior to the determination of the merits of its motion for relief, where the nonprevailing party contended that a settlement agreement existed between the parties, and that the prevailing party’s attorney had fraudulently induced it into not defending the underlying judgment by promising that the prevailing party would not enforce the judgment against it.
Island Transp. v. Ilman, 669 So.2d 298, 21 Fla. L. Weekly D467 (Fla. 3rd DCA 1996), reh’g denied, (Mar. 27, 1996).

Similarly, an evidentiary hearing was required where the party seeking relief from the judgment alleged that the other party to the judgment fraudulently induced the movant into consenting to the terms of the final judgment.
Rosenthal v. Ford, 443 So.2d 1077 (Fla. 2nd DCA 1984).

Generally, where one party alleges no notice of a hearing that results in a judgment against her or him, and the other party disputes this contention, an evidentiary hearing is required to resolve the matter.
Power v. Grow Group, Inc., 697 So.2d 1286, 22 Fla. L. Weekly D1949 (Fla. 5th DCA 1997);
Liberty Mutual Ins. Co. v. Lyons, 622 So.2d 621, 18 Fla. L. Weekly D1797 (Fla. 5th DCA 1993).

The parties may be entitled to discovery prior to the hearing as to the grounds of the motion.
Southern Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 11 Fla. L. Weekly 405 (Fla. 1st DCA 1986);
Pelekis v. Florida Keys Boys Club, Inc., 302 So.2d 447 (Fla. 3rd DCA 1974);

The hearing is limited to those facts necessary to a disposition of the motion for relief and does extend to a finding on the actual substantive issues in the case.
Zwakhals v. Senft, 206 So.2d 62 (Fla. 4th DCA 1968).

Allegations of fraud, mistake, and surprise are questions of fact for the court to determine
Daytona Enterprises, Inc. v. Wagner, 91 So.2d 171 (Fla. 1956);
Kellerman v. Commercial Credit Co., 138 Fla. 133, 189 So. 689 (1939).

by a preponderance of the evidence.
Pelekis v. Florida Keys Boys Club, Inc., 358 So.2d 849 (Fla. 3rd DCA 1978);
Pender v. Hatcher, 303 So.2d 427 (Fla. 2nd DCA 1974).

No right to a jury trial exists on the issues of fact by a motion for relief from a judgment.
Fagan v. Powell, 237 So.2d 579, 75 A.L.R.3d 889 (Fla. 3rd DCA 1970).


s.340 Discretion of court

A trial court may, in its discretion, grant or refuse to grant a motion for relief from a judgment.


Relief from a judgment is not a matter of right, because the rule authorizing relief is intended only to prevent manifest injustice, and the moving party must demonstrate the existence of grounds justifying the exercise of the court’s discretion.


Where there is an unsworn motion not supported by evidence at the hearing demonstrating one of the legal grounds for vacating the judgment, it is an abuse of discretion for the court to vacate a judgment that on its face appears proper.


The court’s exercise of its discretion should be controlled by accepted legal principles and may not be abused.

Reminder: A trial court may not have discretion in relieving a party from a judgment in certain circumstances, such as where the judgment sought to be vacated is void.

s.341 Orders on motions for relief

Relief from final judgments and decrees may be granted upon such terms as the court finds are just.

The opening of a judgment or decree does not destroy the cause of action on which it was based, but has the effect of leaving the case a
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