Sclafano v. Sclafano

District Court of Appeal of Florida

Sclafano v. Sclafano

627 So. 2d 1173, 1993 Fla. App. LEXIS 10333, 1993 WL 406633

CourtDistrict Court of Appeal of Florida

DecidedOctober 13, 1993

DocketNo. 92-2937

StatusPublished

Cited by1 cases

This text of 627 So. 2d 1173 (Sclafano v. Sclafano) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sclafano v. Sclafano, 627 So. 2d 1173, 1993 Fla. App. LEXIS 10333, 1993 WL 406633 (Fla. Ct. App. 1993).

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Opinion

FARMER, Judge.

We affirm the final summary judgment in favor of the defendant in this independent action for relief from a prior judgment. Despite appellant’s best efforts to characterize it otherwise, we conclude that the fraud she has alleged could not possibly be anything other than intrinsic fraud, and thus her action had to be brought within one year from the entry of the judgment.

We do agree with her, however, that it was improper to tax fees and costs against her under section 57.105(1), Florida Statutes (1991), at the summary judgment hearing without giving her prior notice. The judgment for fees and costs is therefore reversed. Upon remand, the court can reconsider the application for fees and costs upon proper notice to the parties. We also grant appel-lee’s motion for attorney’s fees on appeal but only to the extent that they are attributable to that portion of the appeal pertaining to the merits of the summary judgment.

SUMMARY JUDGMENT AFFIRMED; FEES/COSTS JUDGMENT REVERSED.

PARIENTE, J., and DOWNEY, JAMES C., Senior Judge, concur.

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FARMER, Judge.

We affirm the final summary judgment in favor of the defendant in this independent action for relief from a prior judgment. Despite appellant’s best efforts to characterize it otherwise, we conclude that the fraud she has alleged could not possibly be anything other than intrinsic fraud, and thus her action had to be brought within one year from the entry of the judgment.

We do agree with her, however, that it was improper to tax fees and costs against her under section 57.105(1), Florida Statutes (1991), at the summary judgment hearing without giving her prior notice. The judgment for fees and costs is therefore reversed. Upon remand, the court can reconsider the application for fees and costs upon proper notice to the parties. We also grant appel-lee’s motion for attorney’s fees on appeal but only to the extent that they are attributable to that portion of the appeal pertaining to the merits of the summary judgment.

SUMMARY JUDGMENT AFFIRMED; FEES/COSTS JUDGMENT REVERSED.

PARIENTE, J., and DOWNEY, JAMES C., Senior Judge, concur.

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Bluebook (online)

627 So. 2d 1173, 1993 Fla. App. LEXIS 10333, 1993 WL 406633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sclafano-v-sclafano-fladistctapp-1993.

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