ROBERT L. BERNSTEIN, PETITIONER,
v.
BEVERLY J. BERNSTEIN, RESPONDENT
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Robert Bernstein sought certiorari to review a trial court's denial of his motion to dismiss counts alleging fraud in his ex-wife's petition to modify a divorce judgment. The appellate court held that Rule 1.540's one-year deadline for challenging a final judgment based on fraud runs from the date the judgment is entered, not from discovery of the fraud, and therefore granted the writ.
The one-year deadline under Rule 1.540(b) is calculated from the date the final judgment is entered, not from the date of discovery of the alleged fraud. Because the petition for modification was brought over two years after entry of the final judgment, it was untimely and counts one and two should have been dismissed.
[1] A post-judgment petition to set aside a final judgment on grounds of fraud, misrepresentation, or other misconduct of an adverse party must be brought not more than one y…
[2] The one-year time limitation for seeking relief from a judgment under Rule 1.540(b), Florida Rules of Civil Procedure, is calculated from the date the judgment was render…
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Join FLexlaw to unlock all legal intelligence“a post-judgment petition to set aside a final judgment on grounds of fraud, misrepresentation or other misconduct of an adverse party must be brought not more than one year after the final judgment is entered”
Establishes the controlling legal standard that the one-year deadline runs from entry of judgment, not discovery of fraud.
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Join FLexlaw to unlock all legal intelligenceThe parties were involved in a dissolution of marriage and property settlement with a final judgment entered on January 27, 1976. The respondent, Beve…
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HENDRY, Judge.
This is a petition for common law certiorari filed by Robert L. Bernstein, the former husband of the respondent, Beverly J. Bernstein, to review an order of the Circuit Court of Dade County denying his motion to dismiss counts one and two of Mrs. Bernstein’s petition for modification of a final judgment entered by that court on January 27, 1976 in a dissolution of marriage and property settlement suit in which the parties were involved.
The petition for modification was filed on November 17, 1978. In counts one and two it was alleged as grounds for modification of the judgment that Mr. Bernstein was guilty of fraud and concealment in connection with the dissolution and property settlement proceeding.
Mr. Bernstein moved to dismiss the two counts of the petition for modification on numerous grounds among which was that the petition showed on its face that it was grounded under Rule 1.540, Florida Rules of Civil Procedure and that the relief sought was not asserted within the time provided for in such rule, i. e., not more than one year after the judgment, order or proceeding was entered or taken. The trial court took the position that the one year time limitation as set forth in Rule 1.540 Fla.R. Civ.P. is to be calculated from the date of discovery of the alleged fraud and not from the date that the judgment was rendered. The petitioner in this certiorari proceeding seeks quashal of the circuit court’s order denying the motion to dismiss counts one and two of the wife’s petition for modification on the grounds that such order was a departure from the essential requirements of law. We agree. The trial court should have dismissed counts one and two; a post-judgment petition to set aside a final judgment on grounds of fraud, misrepresentation or other misconduct of an adverse party must be brought not more than one year after the final judgment is entered. Fla.R. Civ.P. 1.540(b). Since the instant petition was brought over two years after the entry of the final judgment, the petition was untimely and counts one and two should have been dismissed. August v. August, 350 So. 2d 794 (Fla.3d DCA 1977) and Wilder v. Wilder, 251 So. 2d 311 (Fla. 4th DCA 1971).
For the reasons stated the petition for writ of certiorari is granted and the order under review is quashed.
It is so ordered.
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Rondoe Marie Williams v. Jeannine O. Brochu, 578 So. 2d 491 (Fla. 5th DCA 1991)…ted sum whereas a plaintiff, accepting an Offer of Judgment (for damage claims) would still be entitled to an award of taxable costs under section 57.041, Florida Statutes. We note that while Parliament Insurance Company v. That Girl in Miami, Inc., 377 So. 2d 1011 (Fla. 3d DCA 1979), involved an [*494] offer of judgment pursuant to Rule 1.4424 which was accepted, the Third District held that the offer did not include attorney’s fees which the plaintiff insured was entitled to recover from the defendant insure…
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Brown v. Brown, 432 So. 2d 704 (Fla. 3d DCA 1983)…e of fraud and the diligence with which such was unearthed and proceeded on.’ ” Moore & Rogers, supra at 659 (footnote omitted). . Cases upholding the dismissal of post-judgment motions under the rule as untimely, see, e.g., Bernstein v. Bernstein, 377 So. 2d 1011 (Fla. 3d DCA 1979), or granting relief pursuant to a timely motion under the rule, see, e.g., DeMaggio v. DeMaggio, 317 So. 2d 848 (Fla. 2d DCA 1975), are inapposite to the present inquiry. . The only case cited in Alexander is Corrigan v. Corrigan…
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Encompass Inc. v. Alford, 444 So. 2d 1085 (Fla. 1st DCA 1984)…ng the offer, is not pre- [*1087] eluded from seeking attorneys fees to which he may be entitled by statute. See Wisconsin Life Insurance Company v. Sills, 368 So. 2d 920 (Fla. 1st DCA 1979); Parliament Insurance Company v. That Girl In Miami, Inc., 377 So. 2d 1011 (Fla. 3rd DCA 1979); cf. Hernandez v. Travelers Insurance Company, 331 So. 2d 329 (Fla. 3rd DCA 1976). We next determine whether Encompass qualified for attorney’s fees as a “prevailing” party under Section 713.29 which provides: In any action bro…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- August v. August, 350 So. 2d 794 (Fla. 3d DCA 1977)
- Wilder v. Wilder, 251 So. 2d 311 (Fla. 4th DCA 1971)