EDWARD FISCHBEIN, APPELLANT,
v.
DAVID JENKINS ASSOCIATES, INC., A FLORIDA CORPORATION, AND DAVID JENKINS, INDIVIDUALLY, APPELLEES
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Fischbein sought relief from a prior judgment under Florida Rule 1.540, alleging fraud and misrepresentation by the opposing party. The trial court dismissed his amended complaint for failure to state a cause of action, but the appellate court reversed, finding the complaint adequately alleged the necessary elements of fraud.
The complaint adequately alleged fraud sufficient to support relief under Rule 1.540. The allegations that the adverse parties made a knowingly false affidavit that formed the basis for the prior summary judgment are sufficient, if proved, to warrant the relief sought.
[1] An independent action to relieve a party from a judgment may be brought pursuant to Rule 1.540, Florida Rules of Civil Procedure.
[2] Fraud, misrepresentation, or other misconduct of an adverse party is a ground for relief from a judgment under Rule 1.540(b)(3), Florida Rules of Civil Procedure.
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Join FLexlaw to unlock all legal intelligence“the complaint alleges the making of an affidavit by the adverse parties which was knowingly and falsely made. The complaint further alleges that the false affidavit was a basis for the summary final judgment entered in the prior action.”
Establishes what allegations the court found sufficient to state a cause of action for fraud under Rule 1.540
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Join FLexlaw to unlock all legal intelligenceFischbein brought an independent action seeking relief from a prior judgment. His amended complaint alleged that the opposing party made a false affid…
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Edward Fischbein, who is the appellant here, was the plaintiff in the trial court. He brought an independent action to be relieved from a prior judgment. The judgment appealed dismissed appellant’s amended complaint with prejudice pursuant to motion of the appellee. The language of appellant’s original complaint and, to some extent, of the amended complaint, is somewhat misleading in that each complaint is entitled, “An action for Damages.” Nevertheless, the amended complaint con*86tains a specific prayer for . . relief pursuant to rule 1.540, 31 F.S.A., which permits an independent action to relieve a party from a judgment, . . The ground alleged for relief is the ground set forth in the stated rule at (b) (3), “Fraud . misrepresentation . . . of an adverse party; . . The complaint alleges upon its face dates which, if correct, would bring an action within the time limited by the rule.
The order dismissing the complaint sets forth the ground that the complaint fails on its face to state a cause of action. Appellee in argument before this court urges that the complaint was properly dismissed because it was barred as res ju-dicata. The amended complaint is not on its face subject to this defense. We need not therefore pursue the matter further except to note that a plea of res judicata is an affirmative defense which must be pleaded and proved. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., Fla.App. 1965, 172 So.2d 248; Braz v. Professional Insurance Corp., Fla.App.1958, 101 So.2d 594. Of course this appeal does not encompass a holding as to either the applicability or merits of such a plea if properly made in this cause.
It is next urged that the trial court correctly dismissed the cause because of a failure to set forth the fraud with sufficient particularity. We find that the complaint alleges the making of an affidavit by the adverse parties which was knowingly and falsely made. The complaint further alleges that the false affidavit was a basis for the summary final judgment entered in the prior action. Kut-ner v. Kalish, Fla.App.1965, 173 So.2d 763. We think that if these charges are proved they are sufficient for relief authorized by rule 1.540, Florida Rules of Civil Procedure.
Accordingly, the final judgment is reversed and the cause remanded for further proceedings.
Reversed and remanded.
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Citator
Cited By
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Harvey Weiner, M.D. v. Savage, 407 So. 2d 288 (Fla. 4th DCA 1981)…toppel or res judicata, we conclude that appellant failed to raise this issue by adequate pleading or proof before the trial court. Res judicata or estoppel should have been established in the answer. See Fischbein v. David Jenkins Associates, Inc., 256 So. 2d 85 (Fla.3d DCA 1971), and Rule of Civil Procedure 1.110(d). Appellant’s answer denied negligence and causation and raised the affirmative defense of the statute of limitations but failed to mention res judicata or collateral estoppel. Although there wa…
Authorities Cited
- Kutner v. Kalish, 173 So. 2d 763 (Fla. 3d DCA 1965)
- Etta Braz for the Estate of Fred Braz v. Prof'l Ins. Corp., 101 So. 2d 594 (Fla. 3d DCA 1958)
- Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 172 So. 2d 248 (Fla. 3d DCA 1965)