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The post below was published on Friday, February 4th, 2011 at 10:11 AM.

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Certified Question: Vacating Voluntary Dismissals For Fraud

Sitting en banc in this case, the Fourth District considered whether a former defendant in a case the plaintiff voluntarily dismissed could set aside the dismissal to raise fraud on the court issues even if the plaintiff received no affirmative relief prior to the dismissal.

Perhaps not surprisingly, the case involved a mortgage foreclosure.

The en banc court affirmed an order refusing to set aside the dismissal but certified the following to the state supreme court as a question of great public importance:

DOES A TRIAL COURT HAVE JURISDICTION AND AUTHORITY UNDER RULE 1.540(b), Fla. R. Civ. P., OR UNDER ITS INHERENT AUTHORITY TO GRANT RELIEF FROM A VOLUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE RELIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT?

Judge Polen dissented with an opinion that he noted was written by Judge Farmer before his retirement at the end of 2010.

















































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