MORRISON KIMBROUGH AND PACE FINANCE COMPANY, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
RONNIE MCCRANIE, APPELLEE
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SMITH, Judge.
The trial court dismissed this independent action to set aside, as having been obtained by fraud on the court, a money judgment entered for appellee McCranie against appellants Kimbrough and Pace. Dismissing the action, the trial court ruled that the petition was untimely filed because more than a year had elapsed since the judgment was entered. Rule 1.540(b)(3), R.C.P. While the petition thus dismissed was filed as an independent action and not in the cause which resulted in the judgment attacked, the alleged fraud described in the petition is not that McCranie made misrepresentations misleading the court as to its jurisdiction or preventing Kimbrough and Pace from effectively presenting a defense, but rather that McCranie falsely stated the amount of the damages he had sustained. Allegations of that character are appropriate when a judgment is sought to be vacated within one year on grounds of fraud but not when the attack is delayed longer than a year and must therefore rest on a showing of “fraud on the court.” Alexander v. First Nat’l Bank of Titusville, 275 So. 2d 272 (Fla.App. 4th, 1973). Contrast Corrigan v. Corrigan, 184 So. 2d 664 (Fla.App. 4th, 1966).
Affirmed.
BOYER, C. J., and MILLS, J., concur.
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DeCLAIRE v. Yohanan, 453 So. 2d 375 (Fla. 1984)…rect conflict with Truitt v. Truitt, 383 So. 2d 276 (Fla. 5th DCA 1980); Erhardt v. Erhardt, 362 So. 2d 70 (Fla. 2d DCA 1978), review denied, 368 So. 2d 1366 (Fla.1979); August v. August, 350 So. 2d 794 (Fla. 3d DCA 1977); and Kimbrough v. McCranie, 325 So. 2d 70 (Fla. 1st DCA 1976). We have jurisdiction, article V, section 3(b)(3), Florida Constitution. We find that the conduct in this case did not constitute fraud on the court, as such fraud has been defined and applied, and we quash the decision of the di…1 / 2
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Brown v. Brown, 432 So. 2d 704 (Fla. 3d DCA 1983)…Id. at 277. But as is plain from Hazel-Atlas Glass Co., any extrinsic fraud, not merely fraud upon the court, will support an independent action to be relieved from a judgment. Nor do we take issue with the result reached in Kimbrough v. McCranie, 325 So. 2d 70 (Fla. 1st DCA 1976). There the court held that an independent action alleging that McCranie, in procuring the judgment sought to be set aside, “falsely stated the amount of damages he had sustained,” did not lie. As in Alexander, the court could ver…1 / 2
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Martine Lacore v. Giralda Bake Shop, Inc., 407 So. 2d 275 (Fla. 3d DCA 1981)…4 (Fla.3d DCA 1981). The nature of a default judgment is such that a misleading statement by affidavit as to the amount of damages constitutes a misrepresentation by an adverse party for purposes of Rule 1.540(b)(3). See, e.g, Kimbrough v. McCranie, 325 So. 2d 70 (Fla. 1st DCA 1976); Alexander v. First National Bank of Titus- [*277] ville, 275 So. 2d 272 (Fla. 4th DCA 1973). We do not suggest that anytime a defendant fails to assert a meritorious affirmative defense of set-off, he may subsequently move for v…
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- Alexander v. First Nat'l Bank OF Titusville, 275 So. 2d 272 (Fla. 4th DCA 1973)
- King v. State, 184 So. 2d 664 (Fla. 2d DCA 1966)