final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Edward A. Garrison, Acting Circuit Judge;
L.T. Case No. 2016DR009529XXXXMB.
Guillermo J. Farinas, Palm Beach, for appellant.
K. Wells of Wells Law Firm, LLC, Miami Lakes, for appellee.
ON ORDER TO SHOW CAUSE AND APPELLEE'S MOTION FOR
August 3, 2017, we affirmed the circuit court's order
dismissing the Appellant's complaint. We now
grant the Appellee's motion for attorney's fees.
Additionally, after reviewing the responses to our order to
show cause, we sanction the Appellant and his counsel.
January 2012, the Appellee filed a verified petition for
temporary custody by extended family in the Seventeenth
Judicial Circuit (the "Broward Circuit Court").
Later that month, the Appellee filed an agreed final order,
where the Appellant and the mother, a non-party to this
appeal, agreed that their minor child would live with the
Appellee in Coral Springs. The Appellant has since filed
multiple motions and petitions in the Broward Circuit Court,
seeking relief from the purportedly agreed-to custody order.
The record indicates at least one petition or motion remains
pending in the Broward Circuit Court.
the 2012 custody order was rendered by the Broward Circuit
Court, the proceeding giving rise to this appeal was
filed by the Appellant in the Fifteenth Judicial Circuit (the
"Palm Beach Circuit Court"). There, in September
2016, the Appellant, through counsel, filed a "complaint
for equitable relief from agreed final order modifying
temporary custody by extended family member on the basis of
extrinsic fraud and the lack of personal jurisdiction."
In the complaint, the Appellant asserted he was never served
with notice of the proceedings in the Broward Circuit Court
and, additionally, that the Broward Circuit Court lacked
personal jurisdiction over him. The Palm Beach Circuit Court
correctly dismissed the complaint, and we
time of our affirmance, while the Appellee's motion for
attorney's fees remained pending, we issued an order to
show cause directing the appellant in the above-styled case
and appellant's counsel, Guillermo J. Farinas, Jr.,
"to show cause in writing, if any there be, within ten
(10) days from the date of this order, why this Court should
not impose any and all sanctions available pursuant to this
Court's inherent authority, Fla. R. App. P. 9.410(a), and
the Rules Regulating the Florida Bar for the prosecution of a
considered the entirety of the record and court filings,
including the appellee's motion for appellate
attorney's fees, the "appellant's response to
order to show cause" filed on August 13, 2017, the
"appellee's reply to appellant's response to
order to show cause" and the appendix thereto filed on
August 30, 2017, and the "appellant's amended
response to order to show cause" filed on September 1,
than responding to our order-why he and his counsel should
not be sanctioned-the Appellant begins his amended response
by seeking attorney's fees against the Appellee. He
states that the Appellant "shows cause herein why this
Honorable Court should not impose any sanctions against him
but should impose serious sanctions against the Appellee [ ]
for the prosecution of this VERY SERIOUS appeal."
Further, the Appellant was apparently "forced to file
this VERY SERIOUS and MORALLY NECESSARY appeal."
amended response, the Appellant asks "what facts or
evidence have been presented to demonstrate that this entire
matter is not VERY SERIOUS? On the contrary, all of the
evidence clearly shows that a de facto Kidnapping of the
Appellant's minor child has taken place for over five (5)
years." Finally, the Appellant concludes by stating he
"requests that this Honorable Court dismiss the
Appellee['s] [ ] frivolous and completely meritless
Motion for Appellate Attorney's Fees and seriously
consider the imposition of sanctions against the Appellee [ ]
in the amount that this Honorable Court would deem
the appeal to be completely without merit. Asserting fraud on
the court, the Appellant sought relief from an order entered
more than four years before he filed his complaint. Florida
Rule of Civil Procedure 1.540(b) allows for motions for
relief from judgment to be filed "within a reasonable
time" but, for fraud on the court, the relief must be
sought "not more than 1 year after the judgment, decree,
order, or proceeding was entered or taken." Id.
Clearly, he did not seek relief from the order within the
time required by Rule 1.540(b).
the one-year impediment, a party cannot rely on Rule 1.540 to
seek relief from an order issued by a different court. As one
federal court noted, "in no case has a Florida court
allowed a cause of action for fraud on the court under Rule
1.540 in a court that is different from the one in which the
fraud was committed." Fla. Evergreen Foliage v. E.I.
Dupont De Nemours & Co., 336 F.Supp.2d ...