Sclafano v. Sclafano

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

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.