Board of Public Instruction of Dade County v. Dinkines, 72--636

• Decision Date: 12 June 1973
• Docket Number: No. 72--636,72--636
• Citation: 278 So.2d 663
• Parties: The BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, Florida, a body corporate and poltic under the laws of the State of Florida, Appellant, v. Wesley DINKINES and Rose Dinkines, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 663

278 So.2d 663

The BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, Florida, a body corporate and poltic under the laws of the State of Florida, Appellant, v. Wesley DINKINES and Rose Dinkines, his wife, Appellees.

No. 72--636.

District Court of Appeal of Florida, Third District.

June 12, 1973.

Frank A. Howard, Jr., and Phyllis O. Douglas, Miami, for appellant.

John E. Kirk, and Drummond Paul, Jr., Miami, for appellees.

Before BARKDULL, C.J., and PEARSON and CHARLES A. CARROLL, JJ.

PEARSON, Judge.

This is an interlocutory appeal from an order entered after final judgment in a proceeding in eminent domain. The order appealed is in pertinent portion as follows:

'THIS CAUSE coming on to be heard before me on petitioner's motion to strike or dismiss defendants' sworn petition to set aside final judgment and verdict incorporated therein, for actual and legal fraud on the above-styled court and on the defendants, and the Court considering said sworn petition and arguments of counsel for both parties, and considering legal citations cited by the attorney for petitioner, and the Court being fully advised in the premises, it is

'ORDERED AND ADJUDGED that said motion to strike or dismiss defendants' petition, be, and the same is hereby denied, . . .'.

The determination of the points involved rests upon the application of Rule 1.540(b), RCP, 31 F.S.A. It reads as follows:

'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) . . .The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) Not more than one year after the judgment, decree, order or proceeding was entered or taken . . . 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.' (Emphasis supplied)

The factual background stated in the petition may be summarized for the purposes of this opinion: (1) The appellees (petitioners in the trial court) were the defendants in a condemnation action filed by the Dade County School Board. A final judgment was entered for the condemning authority and the appellees' land was taken. (2) Prior to the action, third parties had attempted to purchase the property for their own use. (3) Also prior to the action, one of the third parties had attempted 'to force' the appellees to dedicate a right of way for a highway to serve a corporate development. The appellees refused to sell or dedicate the right of way and Dade County condemned the necessary land for road-widening purposes. (4) After the same party unsuccessfully tried to purchase land from the appellees for widening a canal, the Central and Southern Florida Flood Control District condemned the necessary land. (5) The same party had plans for the use of the remainder of the appellees' property for a marina. (6) The remainder of the appellees' property was condemned under a declaration that it was necessary for public school purposes. (7) Evidence was introduced at the last condemnation proceeding with the connivance of the third party which depressed the award that the appellees received for their property. (8) After...