ATIMO (LLC)

v.

VENETIA CONDOMINIUM ASSOCIATION INC

w.1 a not-for~profit corporation ,. _;1._f";‘_) , 4: ' _w_ s-\ “A I‘,. -/1 Appellee. O 7 -' Opinionfiled /<5’ I ,2012. On appeal from an Order of the the Miami-Dade County Court. Robert J. Slotkin, Esq., for Appellant. <55 Before SANCHEZ-LLORENS, WALSH, TINKLER-MENDEZ, JJ. (SANCHEZ-LLORENS, J.) It is axiomatic under Florida law that Appellant is entitled to an evidentiary hearing on its Rule 1.540(b) motion. Florida Rule of Civil Procedure 1.540 grants a movant the opportunity to seek relief from final judgment upon motion to the trial court. Subsection (b)(3) lists fraud as one of the enumerated reasons under which a court shall grant relieffrom final judgment, stating: “On motion and upon such terms as are just, the court may [*2] \ ~. relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. . .” Fla. R. Civ. P. 1.540(b)(3). The motion must be filed within a reasonable time and must not be filed later than one year after the judgment. Id. A trial court is given broad discretion in deciding whether to grant a motion for rehearing pursuant to Florida Rule of Civil Procedure l.540(b). See Wolfi"v. Star Realty Trust N0. 12549, Corp., 80 So. 3d 345, 346 (Fla. 3d DCA 2011); see also Robinson ta Weiland, 936 So. 2d 777 (Fla. 5th DCA 2006). Although a trial court has broad discretion in evaluating a Rule 1.540(b) motion, the “motion should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege a colorable entitlement to relief.” Coleman (Parent) Holdings, Inc. v. Morgan Stanley & C0., 20 So. 3d 952, 955 (Fla. 4th DCA 2009). As such, in order to be entitled to an evidentiary hearing, a movant alleging fraud pursuant to Rule 1.540(b) must specify the fraud with such particularity as the circumstances permit. Hembd v Dauria, 859 So. 2d 1238, 1239 (Fla. 4th DCA 2003); see Wolfifi80 So. 3d at 346; see Flemenbaum v. Flemenbaum, 636 So. 2d 579, 580 (Fla. 4th DCA 1994); Coleman (Parent) Holdings, Inc., 20 So. 3d at 955. The movant must additionally explain why the alleged fraud would entitle the movant to have the judgment set aside. Hembcl, 859 So. 2d [*3] at 1239-1240. Florida courts have held on numerous occasions that where a movant properly pleads fraud, there is entitlement to an evidentiary hearing. Wolffi 80 So. 2d at 346-47;"R0bins0n, 936 So. 2d at 781. In Stella v. Stella, for example, the movant alleged that her husband had testified falsely at trial regarding the value ofa statue though he knew that the true value ofthe statue was much higher. Stella v. Stella, 418 So. 2d 1149 (Fla. 4th DCA 1982). The court held that because the movant alleged a colorable claim of fraud, the movant was entitled to an evidentiary hearing on her motion for relief of judgment. Id. In the instant case, the Final Judgment was rendered on June 15, 2011. On June 23, 2011, Appellant ATIMO filed a timely Motion for Re~Hearing and Motion for Relieffrom the Judgment pursuant to Rule 1.540. Appellant argued in its motion that Plaintiffsent Appellant awritten termination oflease that was not authorized by the by-laws of the condominium association. Appellant explained that under the by-laws, a Board meeting is required to ratify a termination of lease. Appellant specifically stated in its motion: “...Plaintiff produced a Board Resolution dated May 24, 2010, purportedly authorizing the termination ofATIMO’s lease. The document was authenticated by the building manager, who testified that the document had been in his possession since May 20, 2010. After the hearing, ATIMO obtained evidence that the Ratification was a forgery. The original version of the [*4] document shows that two Board Members’ signatures were not dated, but rather the dates were inserted sometime before the Trial. The fax masthead indicates that the Resolution was executed on July 30, 2010 and the document appears to have been backdated.” Def ’s Mot. for Re-Hearing and Mot. for Relief from the Final Judgment 1111 A 3-4 Appellant subsequently explained why the purported fraud would entltle it to reliefunder Rule 1.540(b). Appellant stated: “[b]ecause the Resolution was executed on July 30, 2010 and because the Tenant was entitled to thirty (30) days’ notice to terminate its leasehold, Venetia Condominium Association was not entitled to a Final Judgment for Eviction. This is because the Tenant vacated the premises thirty (30) days after the execution date on the Resolution” Id 1] 5. As such, because Appellant has pled fraud with the requislte specificity and further explained why the alleged fraud entitled the movant to have the judgment set aside, the Appellant was entitled to an evidentiary hearing prior to a ruling on its Rule 1.540 motion. [*5] Accordingly, the case shall be remanded to the trial court and the Appellant should be granted an evid tiary hearing. go ea d r redthisji-ldayof MIGNA S NCI-IEZ—LLORENS

CIRCUIT

OURT JUDGE

HON.

LISA

WALSH

A

CO CUR

‘ mar N” LISACWALSH *7 C

CIRCUIT COURT JUDGE

HON.

MARISA

TINKLER-MENDEZ, /.

MARISA TINKLER-MENDEZ

CIRCUIT COURT JUDGE