Brown v. Brown
Citation | 432 So.2d 704 |
Decision Date | 07 June 1983 |
Docket Number | No. 82-648,82-648 |
Parties | Ruth BROWN, Appellant, v. Arthur L. BROWN, Appellee. |
Court | Court of Appeal of Florida (US) |
Horton, Perse & Ginsberg and Arnold R. Ginsberg, Silverstein & Hellman, Miami, for appellant.
Lawrence A. France, North Miami Beach, Scherman & Zelonker and Regina F. Zelonker, Hialeah, for appellee.
Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
The appellant, contesting her former husband's suit to foreclose a mortgage given by her as part of a judicially-approved property settlement agreement, filed a counterclaim alleging that the appellee had fraudulently induced her to execute the property settlement agreement, including the subject note and mortgage, by knowingly and intentionally overvaluing assets in exchange for which, in part, the note and mortgage were given. Earlier the appellant had filed a post-judgment motion in the dissolution action under Florida Rule of Civil Procedure 1.540(b), asking for relief from the final judgment of dissolution on the same ground. That motion was denied as being untimely because filed more than a year after the judgment of dissolution was entered.
Asserting that the denial of Ruth's Rule 1.540(b) motion precluded the filing of the counterclaim in the instant mortgage foreclosure proceedings on the ground of res judicata, Arthur Brown moved to dismiss the counterclaim. The trial court granted Arthur's motion and dismissed the counterclaim with prejudice. This appeal ensued.
The appellant contends that a motion to dismiss a complaint, here the counterclaim, is not an appropriate vehicle for dismissal based on affirmative defenses such as res judicata, see Hough v. Menses, 95 So.2d 410 (Fla.1957); Vaswani v. Ganobsek, 402 So.2d 1350 (Fla. 4th DCA 1981); In re Estate of Donner, 364 So.2d 757 (Fla. 3d DCA 1978); Chambers v. Chambers, 102 So.2d 171 (Fla. 1st DCA 1958), unless, which is not the case here, the facts supporting the affirmative defense appear on the face of the counterclaim, see Cohen v. Cohen, 70 So.2d 362 (Fla.1954); Barrentine v. Vulcan Materials Co., 216 So.2d 59 (Fla. 1st DCA 1968). She further argues that even if the fact of the earlier dismissal of her Rule 1.540(b) motion had appeared on the face of her counterclaim, that dismissal, since based solely on the procedural ground of untimeliness under the rule, would not be res judicata on the merits of her present independent action. See, e.g., Miami Super Cold Co. v. Giffin Industries, Inc., 178 So.2d 604 (Fla. 3d DCA 1965); City of Boca Raton v. Sharp, 107 So.2d 271 (Fla. 2d DCA 1958). See also Board of Public Instruction of Dade County v. Dinkines, 278 So.2d 663 (Fla. 3d DCA 1973) ( ); Scales v. Scales, 237 So.2d 50 (Fla. 3d DCA 1970) (same); In re Casco Chemical Co., 335 F.2d 645 (5th Cir.1964).
We agree with these arguments. However, the appellee contends that the dismissal of the counterclaim can be affirmed for the alternative reason that the court's power to entertain an independent action to set aside the more-than-a-year-old judgment is limited to a cause of action for "fraud upon the court" and that appellant's 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 upon the court," we entirely disagree with the language in Alexander, and the cases which have uncritically adopted such language, which suggests that Rule 1.540(b) restricts a person's right to bring an independent action attacking a more-than-a-year-old judgment to only those frauds which amount to "fraud upon the court."
Interpretation Of The Rule.
The issue before us is does Rule 1.540(b) provide for independent actions only for "fraud upon the court"? The part of the rule pertinent to this issue is the final sentence of the first paragraph, which reads:
"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."
The rule, first adopted and approved in its present form in 1962, see Barnes and Mattis, 1962 Amendments To The Florida Rules Of Civil Procedure, 17 U.Miami L.Rev. 276, 289 (1963), is expressly noted to be "[s]ubstantially the same as Federal Rule 60," 1 In re Florida Rules of Civil Procedure, 187 So.2d 598, 631 (Fla.1966), and is derived from its federal counterpart, Avant v. Waites, 295 So.2d 362 (Fla. 1st DCA 1974). That being the case, and there being nothing in the history of the adoption of the Florida rule to indicate that our Supreme Court intended that its purpose or scope was to be any different than its federal model, we look to the background of the federal rule and the construction given it by federal courts as authority for the correct interpretation of the Florida rule. See Miami Transit Co. v. Ford, 155 So.2d 360 (Fla.1963) ( ); Savage v. Rowell Distributing Corp., 95 So.2d 415 (Fla.1957) ( ); Zuberbuhler v. Division of Administration, 344 So.2d 1304 (Fla. 2d DCA 1977) (same); Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3d DCA 1981) ( ); Gross v. Franklin, 387 So.2d 1046 (Fla. 3d DCA 1980) ( ). See also Pearlman v. Pearlman, 405 So.2d 764 (Fla. 3d DCA 1981); Edgewater Drugs, Inc. v. Jax Drugs, Inc., 138 So.2d 525 (Fla. 1st DCA 1962).
The problem of whether and under what circumstances a final judgment should be assailable involves the clash of two important principles--that litigation must come to an end, see Bros, Inc. v. W.E. Grace Manufacturing Co., 320 F.2d 594, 597-98 (5th Cir.1963), and that justice should be accorded in a particular case, see Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-45, 64 S.Ct. 997, 1000, 88 L.Ed. 1250 (1943). In an effort to maintain the proper balance between these two principles, Rule 60(b) of the Federal Rules of Civil Procedure was promulgated.
Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.1970).
See also 11 C. Wright & A. Miller, Federal Practice & Procedure § 2851 (1973). The authors of the Federal Rule expressly declined to "limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding." 2 Carr v. District of Columbia, 543 F.2d 917, 926 (D.C.Cir.1976); see Lockwood v. Bowles, 46 F.R.D. 625, 629 (D.D.C.1969); 7 J. Moore & J. Lucas, Moore's Federal Practice p 60.31 (2d ed. 1979); 11 Wright & Miller, supra, § 2868. Thus, they provided:
"This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding ... or to set aside a judgment for fraud upon the court." Fed.R.Civ.P. 60(b).
The rule thus preserved the court's historical equitable power to give relief from judgments where it would be manifestly unconscionable to allow their enforcement. As the Committee Note of 1946 to Subdivision (b) of Rule 60 states:
(emphasis supplied).
And in the words of Professor Moore:
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