Brown v. Brown

• Decision Date: 07 June 1983
• Docket Number: No. 82-648,82-648
• Citation: Brown v. Brown, 432 So.2d 704 (Fla. App. 1983)
• Parties: Ruth BROWN, Appellant, v. Arthur L. BROWN, Appellee.
• Court: Florida District Court of Appeals

Page 704

432 So.2d 704

Ruth BROWN, Appellant, v.Arthur L. BROWN, Appellee.

No. 82-648.

District Court of Appeal of Florida Third District.

June 7, 1983.

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.

DANIEL S. PEARSON, Judge.

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, seeHough v. Menses, 95 So.2d 410(Fla.1957);Vaswani v. Ganobsek, 402 So.2d 1350(Fla. 4th DCA1981);In re Estate of Donner, 364 So.2d 757(Fla. 3d DCA1978);Chambers v. Chambers, 102 So.2d 171(Fla. 1st DCA1958), unless, which is not the case here, the facts supporting the affirmative defense appear on the face of the counterclaim, seeCohen v. Cohen, 70 So.2d 362(Fla.1954);Barrentine v. Vulcan Materials Co., 216 So.2d 59(Fla. 1st DCA1968).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 DCA1965);City of Boca Raton v. Sharp, 107 So.2d 271(Fla. 2d DCA1958).See alsoBoard of Public Instruction of Dade County v. Dinkines, 278 So.2d 663(Fla. 3d DCA1973)(recognizing that independent action to set aside judgment available notwithstanding that motion under Rule 1.540(b) precluded because not brought within a year of entry of judgment);Scales v. Scales, 237 So.2d 50(Fla. 3d DCA1970)(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 DCA1973), 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."

I.

Interpretation Of The Rule.

A.

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, seeBarnes 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,"¹In 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 DCA1974).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.SeeMiami Transit Co. v. Ford, 155 So.2d 360(Fla.1963)(objective in promulgating Florida Rules of Civil Procedure is to harmonize our rules with federal rules to the extent possible);Savage v. Rowell Distributing Corp., 95 So.2d 415(Fla.1957)(where Florida rule of procedure is a verbatim adoption of federal rule, it must be assumed that our Supreme Court intended to achieve the same results that would inure under the federal rule);Zuberbuhler v. Division of Administration, 344 So.2d 1304(Fla. 2d DCA1977)(same);Frantz v. Golebiewski, 407 So.2d 283(Fla. 3d DCA1981)(interpretations of federal rule persuasive in considering its Florida equivalent);Gross v. Franklin, 387 So.2d 1046(Fla. 3d DCA1980)(decisions and commentaries under federal rule of civil procedure are persuasive guidelines to interpretation of state rules closely patterned thereon).See alsoPearlman v. Pearlman, 405 So.2d 764(Fla. 3d DCA1981);Edgewater Drugs, Inc. v. Jax Drugs, Inc., 138 So.2d 525(Fla. 1st DCA1962).

1.

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, seeBros, 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, seeHazel-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.

"The purpose of Rule 60(b) is to define the circumstances under which a party may obtain relief from a final judgment.The provisions of this rule must be carefully interpreted to preserve the delicate balance between the sanctity of final judgments, expressed in the doctrine of res judicata, and the incessant command of the court's conscience that justice be done in light of all the facts.In its present form, 60(b) is a response to the plaintive cries of parties who have for centuries floundered, and often succumbed, among the snares and pitfalls of the ancillary common law and equitable remedies.It is designed to remove the uncertainties and historical limitations of the ancient remedies, but to preserve all of the various kinds of relief which they offered."Bankers Mortgage Co. v. United States, 423 F.2d 73, 77(5th Cir.1970).

See also11 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."²Carr v. District of Columbia, 543 F.2d 917, 926(D.C.Cir.1976);seeLockwood v. Bowles, 46 F.R.D. 625, 629(D.D.C.1969);7 J. Moore & J. Lucas, Moore's Federal Practicep 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:

"Two types of procedure to obtain relief from judgments are specified in the rules as it is proposed to amend them.One procedure is by motion in the court and in the action in which the judgment was rendered.The other procedure is by a new or independent action to obtain relief from a judgment, which action may or may not be begun in the court which rendered the judgment....If the right to make a motion is lost by the expiration of the time limits fixed in these rules, the only other procedural remedy is by a new or independent action to set aside a judgment upon those principles which have heretofore been applied in such an action.Where the independent action is resorted to, the limitations of time are those of laches or statutes of limitations....[The Committee] endeavored then to amend the rules to permit, either by motion or by independent action, the granting of various kinds of relief from judgments which were permitted in the federal courts prior to the adoption of these rules, ..."(emphasis supplied).

And in the words of Professor Moore:

"There can be no doubt, then, that the first clause preserved the equitable power of a federal court to entertain an independent action to enjoin the enforcement of, or otherwise give relief from, a judgment on whatever basis chancery would afford relief.And, of course, amended Rule 60(b) reiterates that...