Alexander v. First Nat. Bank of Titusville, 71--1058
| Decision Date | 28 March 1973 |
| Docket Number | No. 71--1058,71--1058 |
| Citation | 275 So.2d 272 |
| Parties | W. C. ALEXANDER et al., Appellants, v. FIRST NATIONAL BANK OF TITUSVILLE, a national banking corporation, Appellee. |
| Court | Florida District Court of Appeals |
William E. Weller of Rose & Weller, Cocoa Beach, for appellants.
Charles M. Harris of Crofton, Holland & Starling, Titusville, for appellee.
This is an appeal from a summary final judgment entered by the Circuit Court for Brevard County, Florida. The plaintiff below, appellee here, instituted the action for the purpose of setting aside certain conveyances of real property claimed to have been fraudulently made for the purpose of defeating plaintiff's effort to collect a deficiency judgment which it had obtained against defendants in a prior foreclosure action. The final judgment of foreclosure was entered on 11 March 1970. The deficiency judgment was entered on 27 August 1970. The present action was instituted sometime prior to 12 November 1970.
By counterclaim the defendants allege that in the prior action the plaintiff misstated the amount of the indebtedness there involved by $8,100.00 with the result that the final judgment of foreclosure and the deficiency judgment were erroneous and obtained by a fraud on the court. The relief sought is a nunc pro tunc reduction in both the judgment of foreclosure and the deficiency judgment.
The trial court struck the counterclaim and later entered a summary judgment for the plaintiff. The issue here is the propriety of the order striking the counterclaim. The appellants concede that the summary judgment is proper, unless the counterclaim was erroneously stricken.
In our opinion, the disposition of this case turns on Rule 1.540(b), RCP 31 F.S.A. In pertinent part that rule provides:
'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; . . . 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.'
Rule 1.540(b) and its forerunner, Rule 1.38(b), RCP, were designed to provide '. . . a party or his legal representative . . .' with a convenient and orderly method for attacking a final judgment, even after the time for appeal had expired. The rule contemplates that the relief on the grounds therein enumerated will be applied for by a motion filed in the same proceeding In which the questioned judgment was entered. See Corrigan v. Corrigan, Fla.App.1966, 184 So.2d 664, 666. As a concomitant to providing this means for relief from a final judgment, the Florida Supreme Court eliminated--with one exception--the common law writs and equitable remedies which had theretofore been used as procedural devices for obtaining such relief. This is the significance of the last sentence of the rule....
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Brown v. Brown
...counterclaim contains no such allegations. In support of his position, the appellee relies on Alexander v. First National Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973), and, presumably, Alexander 's progeny. Although we agree that appellant's counterclaim does not allege a "fraud up......
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Thompson v. Crawford, 84-428
...vacated the judgment of acquittal. While " 'fraud on the court' is a somewhat elusive concept ...," Alexander v. First National Bank of Titusville, 275 So.2d 272, 274 (Fla. 4th DCA 1973), it has been established that "only extrinsic fraud may constitute fraud on the court." DeClaire v. Yoha......
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Rosenstiel v. Rosenstiel
...be made in the same proceeding in which the judgment from which the moving party seeks relief was rendered. Alexander v. First National Bank of Titusville, 275 So.2d 272, 273 (Fla.D.C. of App.1973). Obviously, the instant action is not the same proceeding. Nor in this a matter in which the ......
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Groover v. Groover, 78-2207
...prejudice pursuant to Rule 1.420(b), Florida Rules of Civil Procedure, apparently on the authority of Alexander v. First Nat'l. Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973). The trial court found that such fraud or misrepresentation as may have been chargeable to Hazel Groover was ......