WARREN KINGSBURY PENDER, APPELLANT,
v.
GEORGE HATCHER AND HOLLY HATCHER ET AL., APPELLEES
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In this quiet title action, the appellant obtained a default judgment against his adoptive father and half sister based on constructive service, but the trial court vacated that judgment after finding the appellant committed extrinsic fraud by making false factual allegations in his complaint and affidavits. The appellate court affirmed the vacation of the judgment.
The trial court properly vacated the default judgment and final order because the appellant's false factual allegations constituted extrinsic fraud, and once a legal ground for vacating a judgment and a meritorious defense are shown, the trial court may grant such a motion.
[1] A trial court has discretion to vacate a default judgment upon a showing of extrinsic fraud, concealment, or misrepresentation.
[2] A preponderance or greater weight of the evidence is sufficient to establish fraud for the purpose of vacating a judgment.
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Join FLexlaw to unlock all legal intelligence“Only a preponderance or greater weight of the evidence is required to establish fraud.”
Establishes the standard of proof needed to support a finding of fraud in a motion to vacate.
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Join FLexlaw to unlock all legal intelligenceThe appellant filed suit to quiet title to real property, alleging he could not locate the defendants despite diligent search and that he was the fee …
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BOARDMAN, Judge.
The appellant filed suit to quiet title in a certain parcel of real estate against the appellees, his adoptive father and half sister. In the bill of complaint he alleges that despite diligent search and inquiry he has been unable to locate the whereabouts of the defendants; that he was the fee simple title holder of the subject property; that the ages of the defendants were unknown, and that he paid taxes on the property since 1962. Affidavits for constructive service were filed and generally set out the above-mentioned factual circumstances.
In due course a default judgment was entered against the appellees for their failure to plead or otherwise answer. Subsequently, a final order was entered quieting the title to the said property in the appellant.
Approximately nine months later, the appellees moved to vacate and set aside the final order alleging therein that there was extrinsic fraud, concealment and misrepresentation practiced upon the trial court in that the factual allegations alleged in the complaint and the affidavits for constructive service were untrue.
Upon proper hearing and after consideration of the evidence adduced at the hearing, the trial court entered its order granting the motion to vacate and set aside the default judgment and final judgment previously entered in the case. This timely appeal ensued from that order. Only a preponderance or greater weight of the evidence is required to establish fraud. Rigot v. Bucci, Fla.1971, 245 So. 2d 51. Once a legal ground for vacating a judgment and the existence of a meritorious defense are shown, the trial court may grant a motion to vacate. Winter Park Arms, Inc. v. Akerman, Fla.App.4th, 1967, 199 So. 2d 107.
Applying the foregoing settled principles of law to the facts presented in this case, we conclude that the trial judge was acting within his sound discretion in granting appellees’ motion to vacate and set aside. The trial judge, in his order vacating and setting aside the prior judgments entered in the cases, stated “. that there was concealment, misrepresentation and extrinsic fraud perpetrated on this Court.” This finding, we submit should be left undisturbed for it is based on evidence that meets the required standard of proof, viz., preponderance or greater weight of the evidence. Accordingly, the order appealed is
Affirmed.
McNULTY, C. J., and GRIMES, J., concur.
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Wieczoreck v. H & H Builders, Inc., 450 So. 2d 867 (Fla. 5th DCA 1984)…ngs and Loan Association, 375 So. 2d 1118 (Fla. 4th DCA 1979); Pelekis v. Florida Keys Boys Club, Inc., 358 So. 2d 849 (Fla. 3d DCA 1978); Harrell v. Branson, 344 So. 2d 604 (Fla. 1st DCA), cert. denied, 353 So. 2d 675 (Fla.1977); Pender v. Hatcher, 303 So. 2d 427 (Fla. 2d DCA ,1974); the concurring opinion in Barber v. Hatch, 380 So. 2d 536 at 537 (Fla. 5th DCA 1980) (a preponderance or greater weight of the evidence standard) with Canal Authority v. Ocala Mfg. Ice & Packing Co., 332 So. 2d 321 (Fla.1976); M…
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Est. OF Margarete Bobinger v. The Deltona Corp., 563 So. 2d 739 (Fla. 2d DCA 1990)…, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878). We have held that a complaint alleging untrue factual allegations in the affidavit supporting constructive service is sufficient to state a claim of extrinsic fraud or fraud upon the court. Pender v. Hatcher, 303 So. 2d 427 (Fla.2d DCA 1974); see also, M.L.B. v. Department of Health & Rehabilitative Services, 559 So. 2d 87 (Fla. 3d DCA 1990) (if HRS knowingly failed to provide complete medical history of child with alleged severe psychiatric problems, such would consti…
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Dianne D. and David L. Sprayberry v. Sheffield Auto & Truck Serv., Inc., 422 So. 2d 1073 (Fla. 1st DCA 1982)…evelopment Corp. v. First Federal Savings & Loan Association, 375 So. 2d 1118 (Fla. 4th DCA 1979); Pelekis v. Florida Keys Boys Club, Inc., 358 So. 2d 849 (Fla. 3d DCA 1978); Harrell v. Branson, 344 So. 2d 604 (Fla. 1st DCA 1977); Pender v. Hatcher, 303 So. 2d 427 (Fla. 2d DCA 1974) (a preponderance or greater weight of the evidence standard) with Canal Authority v. Ocala Mfg. Ice & Packing Co., 332 So. 2d 321 (Fla.1976); Headley v. Pelham, 366 So. 2d 60 (Fla. 1st DCA 1978) (clear and convincing evidence stan…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rigot v. Bucci, 245 So. 2d 51 (Fla. 1971)
- Winter Park Arms, Inc. v. Akerman, 199 So. 2d 107 (Fla. 4th DCA 1967)