1.540 Relief from Judgment, Decrees or Orders
This rule was published to the web on Saturday, 21 November 2009
(a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.
Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action.
No. 1 — June 4th, 2011 at 7:21 pm
Craig W. Thompson v. Lezrene M. Cunningham, 36 Fla. L. Wkly D1100a (Fla. 1st DCA May 20, 2011)…
In this family law case, the appellant sought review of a denial of his motion under Rule 1.540 for relief from a judgment. The motion claimed that the judgment contradicted the court’s findings at trial and included findings not supported by the evidence presented. The appellate court affirmed, holding that “rule 1.540 was not intended to serve as a substitute for the new trial mechanism prescribed by rule 1.530 nor as a substitute for appellate review of judicial error.” (quoting Curbelo v. Ullman, 571 So. 2d 443, 444 (Fla. 1990)).
No. 2 — July 10th, 2011 at 5:54 pm
Suntrust Bank, Inc. v. Hodges, 12 So.3d 1278 (Fla. 4th DCA July 22, 2009)…
In this trip and fall case, trial court ordered parties to non-binding arbitration. Arbitrator ruled in favor of the Plaintiff. Defendant did not move for trial de novo within 20 days of order and Plaintiff moved trial court for entry of final judgme…
No. 3 — July 10th, 2011 at 5:55 pm
Wells Fargo Bank v. Conaway, No. 09-000145 (Fla. 6th Cir. Jan. 11, 2010)…
In another mortgage foreclosure case, which was successfully argued by your author, the Bank obtained final summary judgment without notifying the defendant, or their counsel, of the summary judgment hearing. The defendant filed an emergency motion to…
No. 4 — December 23rd, 2011 at 7:39 pm
After the appeals court issued an opinion partially reversing an $8 million final judgement, the trial court was required to hold a new hearing on attorneys’ fees. The trial court had entered a fee award while the appeal was pending. After the appeals court partially reversed the underlying judgment, the trial court, without hearing, simply entered an order reaffirming the prior attorneys’ fee award. The 4th DCA determined that the trial court should have held an additional hearing to determine the proper amount of fees in light of the partial reversal.
The 4th DCA’s reasoning was based on Fla. R. Civ. P. 1.540(b)(5), which provides for relief from a judgment where such judgment is based on a prior judgment that has been “reversed or otherwise vacated.” The 4th DCA’s prior decisions have required an evidentiary hearing where a party sought to set aside judgment per Rule 1.540(b). See Schuman v. Int’l Consumer Corp., 50 So.3d 75 (Fla. 4th DCA 2010).