Flemenbaum v. Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994). · Go Syfert
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Flemenbaum v. Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994). Cases Citing This Book View Copy Cite
55 citation events (41 in the last 25 years) across 1 distinct court.
Strongest positive: MICHELLE PIMIENTA v. DAVID ABRAHAM ROSENFELD (fladistctapp, 2023-06-07)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 29 distinct citers.
discussed Cited as authority (rule) MICHELLE PIMIENTA v. DAVID ABRAHAM ROSENFELD
Fla. Dist. Ct. App. · 2023 · confidence medium
Lopez v. Wilmington Tr., N.A., 302 So. 3d 953 , 955 (Fla. 3d DCA 2020) (concluding that the appellants were not entitled to an evidentiary hearing and their Rule 1.540(b) motion was improper because the asserted allegations were “before the trial court prior to the entry of the amended final judgment of foreclosure”); Flemenbaum v. Flemenbaum, 636 So. 2d 579, 580 (Fla. 4th DCA 1994) (affirming the court’s denial of the motion for relief from judgment where the husband's motion attempted to re-litigate issues that had been previously covered at the trial; explaining that “[i]f a motion …
discussed Cited as authority (rule) JONATHAN STIRBERG and JESSICA STIRBERG v. HENRY H. FEIN, in his capacity of Successor Co-Trustee of the NAT STIRBERG REVOCABLE RESIDENCE TRUST
Fla. Dist. Ct. App. · 2023 · confidence medium
In addition to specifying the fraud, the motion should explain why the fraud, if it exists, would entitle the movant to have the judgment set aside.” Flemenbaum v. Flemenbaum, 636 So. 2d 579, 580 (Fla. 4th DCA 1994) (citations omitted).
discussed Cited as authority (rule) PLASTIQUIM, S.A. v. ODEBRECHT CONSTRUCTION, INC.
Fla. Dist. Ct. App. · 2022 · confidence medium
To fulfil this mandate, Florida Rule of Civil Procedure 1.120(b) necessitates “the circumstances constituting fraud . . . be stated with such particularity as the circumstances may permit.” In this vein, the claim “must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions.” Flemenbaum v. Flemenbaum, 636 So. 2d 579, 580 (Fla. 4th DCA 1994).
discussed Cited as authority (rule) AZRAN MIAMI 2 LLC v. US BANK TRUST, N.A., etc.
Fla. Dist. Ct. App. · 2021 · confidence medium
Flemenbaum v. Flemenbaum, 636 So. 2d 579, 580 (Fla. 4th DCA 1994). ‘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.’ Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 20 So. 3d 952, 955 (Fla. 4th DCA 2009).
discussed Cited as authority (rule) YULIA FOREST KOHL v. CULLEN D'AMBROSIO, as curator of the estate of NORMAN DEAN KOHL, JR.
Fla. Dist. Ct. App. · 2017 · confidence medium
Here, the trial court found the motion untimely under rule 1.540(b), but the motion was timely under rule 12.540(b)(5), which expressly provides that “there will be no time limit for motions based on fraudulent financial affidavits in marital or paternity cases.” We have recognized that “a rule 1.540(b)(3) motion must clearly and concisely set out the essential facts on the fraud, and not just legal conclusions.” Flemenbaum v. Flemenbaum, 636 So. 2d 579, 580 (Fla. 4th DCA 1994).
cited Cited as authority (rule) Tikhomirov v. Bank of New York Mellon
Fla. Dist. Ct. App. · 2017 · confidence medium
Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994) (citations omitted); see also Federal Home Loan Mortg.
cited Cited as authority (rule) Rusniaczek v. Tableau Fine Art Group, Inc.
Fla. Dist. Ct. App. · 2014 · confidence medium
Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994).
discussed Cited as authority (rule) NAFH National Bank v. Aristizabal
Fla. Dist. Ct. App. · 2013 · confidence medium
A separate reason to reverse is that the motion failed to “specify the fraud with particularity and explain why the fraud, if it exists, would entitle the movant to have the judgment set aside.” Freemon v. Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204 (Fla. 4th DCA 2010) (citing Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994)).
cited Cited as authority (rule) Pacheco v. Indymac Federal Bank, F.S.B.
Fla. Dist. Ct. App. · 2012 · confidence medium
Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994).
discussed Cited as authority (rule) Vilvar v. Deutsche Bank Trust Co. Americas
Fla. Dist. Ct. App. · 2011 · confidence medium
See Freemon, 46 So.3d at 1204 (providing that a rule 1.540(b)(3) 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) (citation omitted); Hembd v. Dauria, 859 So.2d 1238, 1239 (Fla. 4th DCA 2003) (“Where a litigant seeks to inject the issue of fraud into a lawsuit, Florida law requires that it be pled with precision, not just flung into the case willy-nilly.”); Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994) (stating that “a rule 1.540(b)(3) motion must clearly and concisely set…
discussed Cited as authority (rule) Wolff v. STAR REALTY TRUST NO. 12549, CORP.
Fla. Dist. Ct. App. · 2011 · confidence medium
Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994); see also Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 20 So.3d 952, 955 (Fla. 4th DCA 2009) (“A trial court has broad discretion in evaluating a Rule 1.540(b) motion seeking relief from final judgment.
cited Cited as authority (rule) U.S. Bank National Ass'n v. Paiz
Fla. Dist. Ct. App. · 2011 · confidence medium
Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994).
cited Cited as authority (rule) Freemon v. Deutsche Bank Trust Co. Americas
Fla. Dist. Ct. App. · 2010 · confidence medium
Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994).
discussed Cited as authority (rule) Regalado v. Cabezas
Fla. Dist. Ct. App. · 2007 · confidence medium
See Davenport, 857 So.2d at 961 (finding that an affidavit filed with a motion to vacate that showed a witness may have perjured himself at the arbitration proceeding was insufficient to trigger an evi-dentiary hearing); Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994)(finding that the husband’s motion did not state facts that constituted fraud and, instead, was an attempt to rehash matters fully explored at trial).
discussed Cited as authority (rule) Hembd v. Dauria
Fla. Dist. Ct. App. · 2003 · confidence medium
In Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994), we explained that a rule 1.540(b)(3) motion seeking relief from a judgment requires that the purported fraud be stated with specificity: Florida Rule of Civil Procedure 1.120(b) requires that the circumstances constituting fraud "be stated with such particularity as the circumstances may permit." This means that a rule 1.540(b)(3) motion must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions.
discussed Cited as authority (rule) Thompson v. Bank of New York
Fla. Dist. Ct. App. · 2003 · confidence medium
Florida Rule of Civil Procedure 1.120(b) mandates that "the circumstances constituting fraud ... shall be stated with such particularity as the circumstances may permit." This means that an affirmative defense or claim "must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions." Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994).
discussed Cited as authority (rule) Davenport v. Dimitrijevic
Fla. Dist. Ct. App. · 2003 · confidence medium
Discussing a rule 1.540(b)(3) motion not involving a judgment confirming an arbitration award, we explained in Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994) that [u]nder Florida Rule of Civil Procedure 1.540(b)(3), a court may relieve a party from a final judgment for fraud.
cited Cited as authority (rule) Dynasty Express Corp. v. Weiss
Fla. Dist. Ct. App. · 1996 · confidence medium
Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994).
cited Cited "see" Limor Arika v. Mill City Mortgage Loan Trust 2017-1, Etc.
Fla. Dist. Ct. App. · 2025 · signal: see · confidence high
See Flemenbaum v. Flemenbaum, 636 So. 2d 579, 580 (Fla. 4th DCA 1994).
cited Cited "see" Held v. Gabriel Towers Condominium Ass'n
Fla. Dist. Ct. App. · 2014 · signal: see · confidence high
See Flemenbaum v. Flemenbaum, 636 So.2d 579 (Fla. 4th DCA 1994).
cited Cited "see" Casteel v. Maddalena
Fla. Dist. Ct. App. · 2013 · signal: see · confidence high
See Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994); see also S. Bell Tel. & Tel.
cited Cited "see" On the Level Builders, Inc. v. Fiddes
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994).
cited Cited "see" Blanco v. Kinas
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994).
discussed Cited "see" Atria v. Hodor
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994)(ob-serving that ''[w]here fraud exists, it is not so subtle a concept that it cannot be described with precision”).
cited Cited "see" Quittner v. Quittner
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994).
cited Cited "see" Stembridge v. Preferred Risk Mutual Insurance Co. of Iowa
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Flemenbaum v. Flemenbaum, 636 So.2d 579 , 580 n. 1 (Fla. 4th DCA 1994); Legler v. Kwitney Kroop & Scheinberg, P.A., 520 So.2d 95, 95 (Fla. 4th DCA 1988).
cited Cited "see" St. Surin v. St. Surin
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See Flemenbaum v. Flemenbaum, 636 So.2d 579 (Fla. 4th DCA 1994); Kidder v. Hess, 481 So.2d 984 (Fla. 5th DCA 1986).
discussed Cited "see, e.g." Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust Co.
Fla. Dist. Ct. App. · 2013 · signal: see also · confidence medium
Hensel v. Aurilio, 417 So.2d 1035, 1038 (Fla. 4th DCA 1982); see also Precision Instrument, 324 U.S. at 819 , 65 S.Ct. 993 (indicating that the unclean hands doctrine justifies dismissal of a plaintiffs claim where “inequitable conduct impregnate^ the] entire cause of action”). 6 Like fraud, unclean hands “is not so subtle a concept that it cannot be described with precision.” Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). “ ‘One who has defrauded his adversary to his injury in the subject matter of the action will not be heard to assert a right in equity.’ ”…
cited Cited "see, e.g." Crowley v. Crowley
Fla. Dist. Ct. App. · 1996 · signal: compare · confidence low
Compare Flemenbaum v. Flemenbaum, 636 So.2d 579 (Fla. 4th DCA 1994).
Abraham FLEMENBAUM, Appellant,
v.
Lily FLEMENBAUM, Appellee.
92-0684.
District Court of Appeal of Florida, Fourth District.
May 11, 1994.
636 So. 2d 579
Gross.
Cited by 42 opinions  |  Published

Ann B. Bradshaw of Law Offices of Ann B. Bradshaw, Hollywood, for appellant.

Frederick C. Sake of Law Offices of Frederick C. Sake, Miami Beach, for appellee.

GROSS, ROBERT M., Associate Judge.

The parties to this appeal were married for over twenty-four years. After a four day trial, the marriage was terminated by a final judgment of dissolution entered on October[*580] 12, 1989. The husband moved for rehearing. That motion was denied. The husband appealed. On October 11, 1990, while the appeal was still pending, the husband, a psychiatrist, filed a "pro se motion for new trial based upon fraud upon the court Rule 1.540." This court affirmed the original final judgment in May, 1991.

Almost two years after the entry of the final judgment, on August 1, 1991, the husband filed a "pro se motion for partial relief from final judgment" renewing the October, 1990, motion, which had never been heard.[1] At the same time, the husband filed a "pro se supplemental petition for modification" seeking to reduce child support and alimony. On December 9 and 10, 1991, there was a lengthy hearing concerning the modification issues. While there was overlapping between the matters raised in the petition for modification and in the rule 1.540 motion, the trial court did not afford the husband an evidentiary hearing on all of the allegations of the wife's fraud contained in the motion.

Because the husband's motion was facially deficient, he was not entitled to an evidentiary hearing on all matters mentioned in it. Under Florida Rule of Civil Procedure 1.540(b)(3), a court may relieve a party from a final judgment for fraud. Florida Rule of Civil Procedure 1.120(b) requires that the circumstances constituting fraud "be stated with such particularity as the circumstances may permit." This means that a rule 1.540(b)(3) motion must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions. See Cady v. Chevy Chase Sav. and Loan, Inc., 528 So.2d 136, 138 (Fla. 4th DCA 1988); Reina v. Gingerale Corp., 472 So.2d 530, 531-32 (Fla. 3d DCA 1985). To entitle a movant to an evidentiary hearing, a rule 1.540(b)(3) motion must specify the fraud. Shienvold v. Habie, 627 So.2d 1203, 1205 (Fla. 4th DCA 1993). Cf. Southern Bell Tel. and Tel. Co. v. Welden, 483 So.2d 487 (Fla. 1st DCA 1986). In addition to specifying the fraud, the motion should explain why the fraud, if it exists, would entitle the movant to have the judgment set aside.

Frequently, rule 1.540(b)(3) fraud motions are attempts to rehash a matter fully explored at trial. In many cases, the term "fraud" is loosely used to label all conduct which has displeased an opposing party. Requiring rule 1.540(b)(3) fraud to be stated with particularity allows a trial court to determine whether the movant has made a prima facie showing which would justify relief from judgment. See Ocala Loan Co. v. Smith, 155 So.2d 711, 716 (Fla. 1st DCA 1963). Where fraud exists, it is not so subtle a concept that it cannot be described with precision. If a motion on its face does not set forth a basis for relief, then an evidentiary hearing is unnecessary. The time and expense of needless litigation are avoided and the policy of preserving the finality of judgments is enhanced.

Prior decisions of this court contain examples of properly pled rule 1.540(b) motions. In Stella v. Stella, 418 So.2d 1029 (Fla. 4th DCA 1982), the wife's motion asserted that the husband had testified at trial that a statue was worth $100, while being fully aware that its true value was $35,000. If proven, this allegation would have changed the court's equitable distribution of assets. In Wiley v. Wiley, 546 So.2d 1149 (Fla. 4th DCA 1989), the husband's motion specified receipts showing that he was entitled to a $2,410.00 credit against child support arrearages. The husband's motion in Ross v. Bandi, 566 So.2d 55, 57 (Fla. 4th DCA 1990), alleged that after the final hearing he learned of an IRS tax lien which rendered his interest in a corporation completely valueless.

The husband's pro se motion in this case attempted, as the trial judge noted, to relitigate issues that had been covered at the trial. It raised de minimis matters which had no effect on the final judgment. The wife's cohabitation with another was adequately[*581] explored at the hearing on the petition for modification.

As to the remaining issues raised by the husband, we find no reversible error. The orders of the trial court are affirmed.

GLICKSTEIN and KLEIN, JJ., concur.

1 The pendency of the appeal divested the trial court of jurisdiction to hear the rule 1.540 motion. Calehuff v. Calehuff, 433 So.2d 1021 (Fla. 4th DCA 1983). The appeal did not toll the time for filing the rule 1.540(b) motion. Legler v. Kwitney, Kroop & Scheinberg, P.A., 520 So.2d 95 (Fla. 4th DCA 1988); Seven-Up Bottling Co. of Miami v. George Constr. Corp., 153 So.2d 11 (Fla. 3d DCA 1963).