TERRI LEE HUFFMAN, APPELLANT,
v.
JOSE ROMO DELACRUZ, APPELLEE
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The Fourth District Court of Appeal affirmed the trial court's vacation of a settlement order, holding that an attorney's unauthorized settlement of a lawsuit and forged endorsement of the settlement check on behalf of the client constituted extrinsic fraud on the court, which permits vacation without time restrictions under Florida Rule of Civil Procedure 1.540(b).
The court held that the attorney's actions constituted extrinsic fraud on the court, which prevented the party from participating in the case. Such extrinsic fraud permits vacation of the judgment without the time restrictions that normally apply to motions to vacate under Florida Rule of Civil Procedure 1.540(b).
[1] An attorney's procurement of a settlement without client consent, including forging the client's name on a settlement check, constitutes extrinsic fraud.
[2] Extrinsic fraud, which prevents a party from presenting their case, is not subject to a time limit for bringing a motion to vacate pursuant to Florida Rule of Civil Proce…
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Join FLexlaw to unlock all legal intelligence“where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat...these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree”
Establishes that unauthorized attorney representation and connivance in defeat constitutes extrinsic fraud permitting vacation of judgment
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Join FLexlaw to unlock all legal intelligenceThe plaintiff/appellee's former attorney settled a lawsuit and signed settlement stipulations without the client's consent. The attorney also forged t…
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WARNER, Judge.
The trial court vacated the final order of dismissal and order enforcing settlement because it found that the plaintiff/appellee’s attorney had procured a settlement of the lawsuit without the appellee’s consent.1 Not only had the attorney signed the settlement stipulations without the appellee’s consent, but he also forged his client’s name on the settlement check. The appellee has received nothing from the settlement. We affirm, holding that the actions of appellee’s attorney constituted extrinsic fraud on the court, for which there is no time period for bringing a motion to vacate pursuant to Florida Rule of Civil Procedure 1.540(b).
In DeClaire v. Yohanan, 453 So. 2d 375, 377 (Fla.1984), the court stated:
The definition of extrinsic fraud was specifically articulated in United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878), in which the United States Supreme Court said:
Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side-these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. (Citations omitted.)
Consistent with the general rule, this Court has defined extrinsic fraud as the
prevention of an unsuccessful party [from] presenting his case, by fraud or deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit or the acts of the plaintiff; fraudulent representation of a party without his consent and connivance in his defeat; and so on.
Fair v. Tampa Electric Co., 158 Fla. 15, 18, 27 So. 2d 514, 515 (1946). In other words, extrinsic fraud occurs where a defendant has somehow been prevented from participating in a cause.
(emphases supplied)(internal citation omitted). The actions of appellee’s attorney in settling the case without his client’s permission and forging his client’s name to the settlement check constituted “extrinsic fraud which prevents a party from having an opportunity to present his case in court.” Id. at 379.
We have carefully considered the other points raised by the appellant and conclude that DeClaire requires affirmance of the trial court’s order. FARMER, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur. . The lawyer presently representing appellee was not the lawyer committing the fraudulent acts. Indeed, appellee’s first attorney has since been disbarred.
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The Fla. Philharmonic Orchestra, Inc. v. Bradford, 145 So. 3d 892 (Fla. 4th DCA 2014)…order, or proceeding or to set aside a judgment or decree for fraud upon the court.”). In fact, we have affirmed an order setting aside a settlement agreement pursuant to Rule 1.540(b) based on conduct similar to Rovenger’s. See Huffman v. Delacruz, 719 So. 2d 385, 385-86 (Fla. 4th DCA 1998). There, we emphasized that extrinsic fraud on the court includes “fraudulent representation of a party without his consent and connivance in his defeat.” Id. at 386 (quoting Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.…
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Bony v. The Pub. Health Tr. OF Dade Cnty., 743 So. 2d 583 (Fla. 3d DCA 1999)…esented by counsel. The [*585] case law does not support that proposition. At least in some circumstances, the unauthorized action of counsel in settling a case without permission has been held to constitute extrinsic fraud. See Huffman v. Delacruz, 719 So. 2d 385, 386 (Fla. 4th DCA 1998); see also DeClaire v. Yohanan, 453 So. 2d 375, 377 (Fla.1984). Although we need not reach the point now, the same logic may well apply to a fraud perpetrated by a co-party. Since the legal proposition advanced by the Public…
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Authorities Cited
- United States v. Throckmorton, 98 U.S. 61 (U.S. 1878)
- DeCLAIRE v. Yohanan, 453 So. 2d 375 (Fla. 1984)
- Fair v. Tampa Elec. Co., 158 Fla. 15 (Fla. 1946)