ASHLAND OIL, INC., AND COBIA BOATS, INC., APPELLANTS,
v.
ROD PICKARD ET AL., APPELLEES
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Ashland Oil and Cobia Boats sought relief from a nearly two-million-dollar judgment affirmed on appeal, claiming newly discovered evidence of fraud by opposing counsel. The court denied the motion, finding appellants failed to demonstrate fraud materially affected the judgment.
The court held that appellants failed to make a prima facie showing of fraud affecting the judgment and therefore denied the motion for stay of execution and relief from judgment.
[1] A motion for relief from judgment pursuant to Florida R.C.P. …
[2] The rule providing for relief from judgment is intended to prevent manifest injustice, and the moving party must demonstrate grounds justifying the exercise of the court'…
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Join FLexlaw to unlock all legal intelligence“Relief from judgment pursuant to Florida R.C.P. 1.540(b)(3), 31 F.S.A., is directed to the sound discretion of the court and cannot be invoked as a matter of right.”
Establishes that relief from judgment is discretionary and not a matter of right, requiring the moving party to demonstrate grounds justifying judicial discretion.
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Join FLexlaw to unlock all legal intelligenceFollowing a jury trial in June 1971 that resulted in a mistrial, a second trial occurred resulting in a judgment of approximately two million dollars …
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PER CURIAM.
This is a motion filed herein by the appellants for stay of execution or for leave to apply to the trial court therefor. The appellees recovered a judgment following a jury trial of almost Two Million Dollars in compensatory and punitive damages against the appellants. The judgment was affirmed by this court. Ashland Oil, Inc. v. Pickard, Fla.App.1972, 269 So. 2d 714.
Thereafter, appellants uncovered evidence which allegedly “materially affected the trial” resulting in the judgment. This motion was filed on December 28, 1973, and this court granted stay of execution on January 2, 1973, pending oral argument and determination of the motion.
The motion alleges that certain documentary evidence, including a $10,000 check purportedly sent by one Alvah Hales to appellee Pickard, was fabricated, and that their testimony was perjured. This alleged fraudulent evidence was introduced at the first trial of this cause in June, 1971, which resulted in a mistrial. Appellants concede that the fabricated documents and Hales’ testimony were not offered into evidence at the second trial which resulted in the judgment presently in question.
However, appellants contend that the falsity of the evidence became known to appellees’ trial counsel, Gilbert A. Haddad and Michael R. Josephs, prior to the second trial, and it became incumbent upon counsel to divulge this information to the court and to the appellants.
Appellees’ response thereto is that when the authenticity of the documents was first suspected less than a week before the second trial was due to commence, they inquired of their clients concerning the authenticity of the evidence. Appellee Pick-ard has at all times insisted that the evidence was not falsified, but was only a “reconstruction of a check represented to him by Hales as being typed in Mexico and forwarded as a down payment” on a No. 3 shrimp trawler. Nevertheless, counsel for appellees dropped the entire claim relating to an anticipated sale to Hales only, and the disputed evidence was not offered in the second trial.
Relief from judgment pursuant to Florida R.C.P. 1.540(b)(3), 31 F.S.A., is directed to the sound discretion of the court and cannot be invoked as a matter of right. Fagan v. Powell, Fla.App.1970, 237 So. 2d 579; Lesperance v. Lesperance, Fla.App.1971, 257 So. 2d 66. The rule is intended to prevent manifest injustice, and the moving party must demonstrate the existence of grounds justifying the exercise of the court’s discretion. Butler v. Butler, Fla.App.1965, 172 So. 2d 899.
We have carefully considered the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that the appellants have failed to make a prima facie showing of fraud which affected the judgment in this case.
Accordingly, the appellants’ motion for a stay of execution by this court or for leave to apply in the trial court for a stay of execution, vacation of judgment and a new trial is denied. Compare, State ex rel. Tobin v. Holt, Fla.App.1960, 117 So. 2d 428. The stay now in effect is hereby quashed
It is so ordered.
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Citator
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Louisville & Nashville R.R. Co. v. Hickman, 445 So. 2d 1023 (Fla. 1st DCA 1983)…in moving for a new trial is not required to show that the newly discovered evidence would alter the course of the trial. However, such a motion is directed to the sound discretion of the trial judge. Alston v. Shiver; Ashland Oil, Inc. v. Pickard, 289 So. 2d 781 (Fla. 3rd DCA 1974), cert. den. 300 So. 2d 897 (Fla.1974). In the instant case, while Mrs. Hickman’s false testimony was material with regard to her derivative claim, her testimony with regard to Mr. Hickman’s injuries was merely cumulative. Accordi…
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In re the Adoption OF Baby Girl "C" v. K.S., 511 So. 2d 345 (Fla. 2d DCA 1987)….4 The standard of review for determining on appeal the correctness of the denial of those motions, which is all that is now before us, is whether the trial court abused its discretion. This standard was referred to in Ashland Oil, Inc. v. Pickard, 289 So. 2d 781 (Fla. 3d DCA 1974), where the Third District Court of Appeal pointed out that “[r]elief from judgment ... is directed to the sound discretion of the court and cannot be invoked as a matter of right.” Id. at 782. See Lewis v. Jennings, 64 So. 2d 275,…
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Bare Necessities, Inc. v. Estrada, 902 So. 2d 184 (Fla. 3d DCA 2005)…(Fla. 3d DCA 2002)(noting that “[wjhether relief should be granted pursuant to Rule 1.540 is a fact specific question and the trial court’s ruling should not be disturbed on appeal absent a gross abuse of discretion”); Ashland Oil, Inc. v. Pickard, 289 So. 2d 781, 782 (Fla. 3d DCA 1974)(confirming that relief from judgment under rule 1.540(b)(3) is directed to the sound discretion of the trial court); see also Shongut v. Malnik, 173 So. 2d 708, 709 (Fla. 3d DCA 1965) (finding no abuse of discretion in denial…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ashland OIL, Inc. v. Rod Pickard, 269 So. 2d 714 (Fla. 3d DCA 1972)
- Lesperance v. Lesperance, 257 So. 2d 66 (Fla. 3d DCA 1971)
- Butler v. Butler, 172 So. 2d 899 (Fla. 3d DCA 1965)
- State of Fla. ex rel. Samuel H. Tobin & Joseph Norwood v. Holt, 117 So. 2d 428 (Fla. 3d DCA 1960)
- Fagan v. Powell, 237 So. 2d 579 (Fla. 3d DCA 1970)