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Manzaro v. D'Alessandro

Florida Court of Appeals, Fourth District

November 1, 2017

JOSEPH MANZARO, Appellant,
v.
LINDA D'ALESSANDRO, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal 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.

          Megan K. Wells of Wells Law Firm, LLC, Miami Lakes, for appellee.

          ON ORDER TO SHOW CAUSE AND APPELLEE'S MOTION FOR ATTORNEY'S FEES

          KUNTZ, J.

         On 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.

         In 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.[1]

         Though 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 affirmed.[2]

         At the 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 frivolous appeal."

         We have 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, 2017.[3]

         Rather 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."

         In the 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 appropriate."[4]

         We find 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).

         Beyond 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 ...


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