Chapter 14-3 Rule 1.540 and Motions to Vacate Judgment

14-3 Rule 1.540 and Motions to Vacate Judgment

Florida Rule of Civil Procedure 1.540(b) sets forth several grounds upon which a court may relieve a party from a final judgment. Rule 1.540, titled "Relief from Judgment, Decrees, or Orders," states:

(a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action.

14-3:1 Appellate Considerations

Because a trial court is accorded broad discretion in determining Rule 1.540(b) motions,³² the standard of review of an order denying a Rule 1.540(b) motion for relief from judgment is whether there has been an abuse of the trial court's discretion.³³ The Florida Rules of Appellate Procedure expressly permit appeals of orders on Rule 1.540 motions, unlike orders of Rule 1.530 motions.³⁴ However, a Rule 1.540 motion does not toll the time to appeal the underlying judgment (unlike a timely Rule 1.530 motion).³⁵ Also, while true that whether a motion is truly a Rule 1.530 motion or a Rule 1.540 motion is determined by its content and not its title,³⁶ the court will not re-draft the motion and care should be taken to use the rule intended.³⁷

An order denying a motion to set aside a judgment filed pursuant to rule 1.540(b) is generally reviewed for abuse of discretion.³⁸ However, if the facts are not in dispute, and the trial court's decision is based on a pure question of law, then review is de novo.³⁹ But a higher standard (than if the trial court had denied the motion) is applied to overturn the decision granting a motion to vacate.⁴⁰ Thus, a showing of gross abuse of discretion is necessary on appeal to justify reversal of the lower court's granting of a motion to vacate.⁴¹

While of course it is better to object on the record to a Rule 1.540(b)(1), (2), or (3) motion as untimely, because the issue is jurisdictional, it can be raised for the first time on appeal.⁴²

As with Rule 1.530, Rule 1.540 motions can only be directed to final orders or judgments.⁴³ For instance, while an order granting a writ of possession can be appealed as a non-final order, it cannot be targeted by a Rule 1.540(b) motion.⁴⁴ This means that a denial of a motion to vacate a non-final order cannot be appealed.⁴⁵

One use of Rule 1.540 can be to obtain a fresher judgment for appellate purposes, where the court failed to send the order to counsel within the appeal time.⁴⁶ However, that non-receipt of the order must not be the result of a conscious decision by counsel to use a defective e-mail system.⁴⁷ Failure to receive notice can be addressed by the requirements of due process, but the court will look at whether there was actual notice or whether the failure to receive notice should be attributed to the party.⁴⁸

A default judgment based on a complaint that fails to state a cause of action is merely "voidable," which means the judgment must be challenged on that ground immediately in a motion for rehearing under Rule 1.530, or on appeal, and cannot be challenged under Rule 1.540(b)(4) as void.⁴⁹ Therefore, a judgment based on a complaint that fails to state a cause of action, where the party had notice of the proceedings and failed to address the issue, is merely voidable as opposed to void.⁵⁰ A voidable judgment must be attacked, on the ground of failure to state a cause of action, by Rule 1.530 and/or appeal.⁵¹ A judgment that has an error in the legal description is merely voidable, not void.⁵² The motion to vacate must articulate one of the five grounds under Rule 1.540(b) or it can be denied for that reason alone.⁵³ Also, while true that whether a motion is truly a Rule 1.530 motion or a Rule 1.540 motion is determined by its content and not its title,⁵⁴ the court will not re-draft the motion and care should be taken to use the rule intended.⁵⁵

14-3:2 Evidentiary Hearing

An evidentiary hearing is unnecessary if a Rule 1.540(b) motion merely undertakes to rehash matters previously litigated at trial or raises inconsequential "de minimis" matters.⁵⁶ A motion seeking relief under Rule 1.540(b) warrants denial without an evidentiary hearing when the "allegations and accompanying affidavits fail to allege a colorable entitlement to relief."⁵⁷ For instance, to entitle a movant to an evidentiary hearing on a motion for relief from judgment under Rule 1.540(b)(3), the motion must specify the fraud with particularity and explain why the fraud, if it exists, would entitle the movant to have the judgment set aside.⁵⁸ If a motion does not set forth a basis for relief on its face, then an evidentiary hearing is unnecessary, the time and expense of needless litigation is avoided, and the policy of preserving the finality of judgments is enhanced.⁵⁹ The matter alleged must affect the outcome of the case and not merely be "de minimis."⁶⁰ Thus, to obtain a hearing on a Rule 1.540(b)(3) motion, the law requires a movant "to demonstrate a prima facie case of fraud, not just nibble at the edges of the concept."⁶¹ The evidence of fraud must be competent, sworn or verified.⁶² Post-judgment discovery cannot commence on a motion for relief from judgment based upon unsworn allegations.⁶³

14-3:3 One-Year Limitation Under Rule 1.540(b)(1) Through (3); Reasonable Time

On the face of Rule 1.540(b)(1), (2), and (3), a party must move for relief within a "reasonable time" that cannot exceed one year.⁶⁴ But one year is the outside limit, and a court may find that one-year is not reasonable on particular facts.⁶⁵ For instance, it has been held that six weeks⁶⁶ and four months⁶⁷ was not reasonable as a matter of law. Moreover, a party seeking relief on the basis of fraud, misrepresentation, or misconduct has an obligation to raise the issue as soon as reasonably possible.⁶⁸

There is a necessity for "finality of litigation" which Florida courts have found prohibits them from giving parties a second chance at proof that they had available in the first instance, but overlooked or chose not to use.⁶⁹ Rule 1.540(b)(1) through (3) was not intended to allow parties to reopen lawsuits to assert new claims, or to offer new evidence omitted by oversight or inadvertence.⁷⁰ No party should be forced to bear the burden of relitigating a matter due to the opponent's failure to take the necessary steps to protect his or her interests, particularly when this could have been easily done.⁷¹

Motions pursuant to Florida Rule of Civil Procedure 1.540(b) cannot be used as a substitute for a motion for rehearing or an appeal.⁷² For instance, a borrower should not be permitted to allow herself to be defaulted, and then neither appeal nor move for rehearing,⁷³ and then be permitted to later challenge the bank's standing under a Rule 1.540 motion to vacate.⁷⁴

Rule 1.540(b) applies to final orders as well as judgments.⁷⁵ There is only one year available to a judgment holder to vacate a final judgment due to a "substantive" error in the legal description in the mortgage, judgment, and certificate of title.⁷⁶ However, if the error in legal description did not arise from the mortgage or deed or other legal document encumbering the property, but first appeared only in the judgment, then it is a mere scrivener's error which can be corrected at any time under Rule 1.540(a).⁷⁷ However, it is important to move for relief under the correct sub-paragraph of the rule, either 1.540(a) or 1.540(b)—or if unsure, both.⁷⁸

It is important to note that an "amended" Rule 1.540(b)(1), (2), or (3) motion that alleges new relief not argued in the original motion does not expand the one-year period.⁷⁹ Similarly, a party cannot escape its failure to appeal an adverse ruling by filing a Rule 1.540(b) motion and then appealing its denial, because Rule 1.540(b) is not designed to correct judicial error, but party error.⁸⁰

While of course it is better to object on the record to a Rule 1.540(b)(1), (2), or (3) motion as untimely, because the issue is jurisdictional, it can be raised for the...