ELLIS NATIONAL BANK OF TALLAHASSEE, A NATIONAL BANKING CORPORATION, APPELLANT,
v.
PERRY L. DAVIS AND BURMA L. DAVIS, HIS WIFE, APPELLEES
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Ellis National Bank appealed a usury judgment against it and obtained a partial reversal on appeal, but later sought relief from judgment based on a subsequent change in Florida law. The appellate court affirmed the trial court's denial of the motion for relief, holding that Rule 1.540 does not permit reopening final judgments based on intervening changes in substantive law, except potentially in ongoing injunction contexts.
Rule 1.540 does not generally allow parties to assert changes in law as grounds for relief from final judgment. An exception may exist for ongoing injunctions, but no such exception applies to final judgments in ordinary civil cases. The motion for relief was properly denied.
[1] An affirmative defense not pleaded is waived.
[2] A motion for relief from judgment under Rule 1.540, Fla.R.Civ.P., generally does not allow parties to assert changes in the law that occurred after final judgment.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 1.540(b) Florida Rules of Civil Procedure does not generally allow parties to assert changes in the law. While an exception may exist when an ongoing injunction is being considered, there is no exception to this general principle under the circumstances of the instant proceeding.”
Establishes the core holding that Rule 1.540 does not permit relief based on intervening changes in substantive law, with limited exception for ongoing injunctions.
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Join FLexlaw to unlock all legal intelligenceIn 1973, Ellis National Bank sued Perry L. and Burma L. Davis on a promissory note. The Davises successfully asserted a usury defense at trial. On app…
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MILLS, Chief Judge.
In 1973 Ellis National Bank of Tallahassee brought suit on a promissory note against Perry L. and Burma L. Davis. The Davises asserted an affirmative defense of usury and prevailed in the trial court. This Court affirmed the finding as to the existence of usury, but increased the penalty in Ellis National Bank of Tallahassee v. Davis, 359 So. 2d 466 (Fla. 1st DCA 1978). After certiorari was denied by the Florida Supreme Court at 365 So. 2d 711 and by the United States Supreme Court, the Bank returned to the trial court and filed a motion for relief from judgment pursuant to Rule 1.540, Fla.R.Civ.P., urging that the underlying substantive law had been drastically changed by the Florida Supreme Court’s decision in Cesary v. Second National Bank of North Miami, 369 So. 2d 917 (Fla.1979), that the change should now be applied to its case, and that the interests of justice would be defeated by enforcing the judgment. The trial court denied the motion.
We affirm and in so doing we adopt the ruling of the trial court:
“The Plaintiff’s ‘Motion For Relief From Judgment’ be and is hereby denied. The issue that Plaintiff seeks to raise would constitute an affirmative defense. Had it been raised as an affirmative defense, it would have had to be resolved in trial. Plaintiff, however, cannot now raise this after final hearing and after final judgment has been entered, as an affirmative defense that is not pleaded is waived. Further, Rule 1.540(b) Florida Rules of Civil Procedure does not generally allow parties to assert changes in the law. While an exception may exist when an ongoing injunction is being considered, there is no exception to this general principle under the circumstances of the instant proceeding.”
AFFIRMED.
McCORD and BOOTH, JJ., concur.
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In re Guardianship of Theresa Marie Schiavo v. Schiavo, 792 So. 2d 551 (Fla. 2d DCA 2001)…d DCA 1986) (refusing to apply rule where basis for motion was potential defense to underlying action; rule contemplates equities arising after final judgment); Gregory v. Connor, 591 So. 2d 974 (Fla. 5th DCA 1991) (same); Ellis Nat’l Bank v. Davis, 379 So. 2d 1310 (Fla. 1st DCA 1980) (affirming denial of rule 1.540 motion when issue could and should have been raised as affirmative defense, particularly when underlying action is not injunctive in nature); Gimbel v. Int’l Mailing & Printing Co., 505 So. 2d 631…
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Curtiss-Wright Corp. v. Diaz, 507 So. 2d 1197 (Fla. 3d DCA 1987)…ing relief from a judgment must show that “(1) the judgment has prospective application and (2) it is no longer equitable that it should so operate.” Kirksey v. City of Jackson, 714 F. 2d 42, 43 (5th Cir.1983). See also Ellis National Bank v. Davis, 379 So. 2d 1310, 1310 (Fla. 1st DCA 1980) (noting that an exception to the principle that a change in law after judgment does not provide a basis for relief under Rule 1.540(b) may exist “when an ongoing injunction is being considered”). However, the judgment enter…
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Theisen v. OLD Republic Ins. Co., 468 So. 2d 434 (Fla. 5th DCA 1985)…or final judgment under Florida Rule of Civil Procedure 1.540(b). See Plymouth Citrus Products Co-Op. v. Williamson, supra; American Fire and Casualty Company v. Dawson, 400 So. 2d 849 (Fla. 2d DCA 1981); Ellis National Bank of Tallahassee v. Davis, 379 So. 2d 1310 (Fla. 1st DCA 1980). See also Penthouse North Association v. Lombardi, 461 So. 2d 1350 (Fla.1984). Cf. Brunner Enterprises, [*436] Inc. v. Department of Revenue, 452 So. 2d 550 (Fla.1984), where the cause was still pending as to the parties and issu…
Authorities Cited
- Cesary v. The Second Nat'l Bank OF N. Miami, 369 So. 2d 917 (Fla. 1979)
- Ellis Nat'l Bank OF Tallahassee v. Davis, 359 So. 2d 466 (Fla. 1st DCA 1978)