42 Fla. L. Weekly D2315b

Attorney’s
fees — Appellate attorney’s fees and costs awarded to appellee as sanction
against appellant and counsel for filing frivolous appeal

JOSEPH MANZARO, Appellant, v.
LINDA D’ALESSANDRO, Appellee. 4th District. Case No. 4D16-3951. November 1,
2017. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Edward A. Garrison, Acting Circuit Judge; L.T. Case No.
2016DR009529XXXXMB. Counsel: 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
1239, 1272 (S.D. Fla. 2004) (citing Cobourn v. Cobourn, 436 So. 2d 284,
285 (Fla. 5th DCA 1983)).

Apparently aware of the
impediments presented by Rule 1.540, the Appellant and his counsel argue the
attempt to obtain relief from the order should be treated as an independent
action. And, we agree that Rule 1.540(b) states that it “does not limit the
power of a court to entertain an independent action to relieve a party from a
judgment, decree, order, or proceeding or to set aside a judgment or decree for
fraud upon the court.” However, the Appellant and his counsel have not
presented any persuasive argument that this independent action for fraud on the
Broward Circuit Court can be brought in Palm Beach Circuit Court. That is an
argument explicitly rejected in Florida Evergreen, where the court
concluded a claim for fraud on the court, whether an independent action or
pursuant to Rule 1.540(b), must be brought in the court where the fraud was
purportedly committed. Fla. Evergreen Foliage, 336 F. Supp. 2d at 1271
(citing Chewning v. Ford Motor Co., 35 F. Supp. 2d 487 (D.S.C. 1998)).5

Regardless, whether or not a
court has theoretical jurisdiction over an independent action for relief from a
judgment entered by a different court is not dispositive on the issue of the
frivolity of the Appellant’s complaint in this case. Even if the Palm Beach
Circuit Court had jurisdiction to entertain the independent action, it would
have been precluded by both the principles of comity, due to the Appellant’s
pending request for similar relief in Broward County, see JP Morgan Chase
Bank, N.A. v. Estate of Neu, 133 So. 3d 1068, 1070 (Fla. 4th DCA 2014), and
res judicata, due to the multiple earlier final orders denying the same relief
requested in this proceeding, see Pearce v. Sandler, 219 So. 3d 961, 966
(Fla. 3d DCA 2017).

The Appellant has had
multiple opportunities to raise the issues presented in his complaint to the
Broward Circuit Court and, in fact, has done so. His attempt at filing a new
lawsuit in a different circuit, after those prior attempts were rejected and
while other new attempts still remain pending in the Broward Circuit Court, is
completely devoid of merit. Therefore, we grant the Appellee’s motion for
appellate attorney’s fees, and sanction the Appellant and his counsel.

Pursuant to section
57.105(1), Florida Statutes (2016), Florida Rule of Appellate Procedure
9.410(a), and this Court’s inherent authority, the Court awards the appellee
its appellate attorney’s fees and costs as a sanction against the Appellant and
his counsel, Guillermo J. Farinas, Jr., for the filing of a frivolous appeal. Waddington
v. Baptist Med. Ctr. of Beaches, Inc., 78 So. 3d 114, 115 (Fla. 1st DCA
2012); Visoly v. Sec. Pac. Credit Corp., 768 So. 2d 482, 492 (Fla. 3d
DCA 2000).

On remand, the circuit court
shall set the amount of the attorney’s fees to be awarded for this appellate
case. If a motion for rehearing is filed in this court, then services rendered
in connection with the filing of the motion, including, but not limited to,
preparation of a responsive pleading, shall be taken into account in computing
the amount of the fee. The circuit court shall require the appellate fees and
costs to be paid in equal amounts by the Appellant and the Appellant’s counsel,
Guillermo J. Farinas, Jr. See, e.g., § 57.105(1), Fla. Stat.; Sullivan
v. Sullivan, 54 So. 3d 520, 523 (Fla. 4th DCA 2010).

In conclusion, we grant the
Appellee’s motion for attorney’s fees, sanction the Appellant and the
Appellant’s counsel, Guillermo J. Farinas, Jr., and remand the case to the
circuit court for a determination of the amount of the fee award, which shall
be paid equally by the Appellant and his counsel.

Motion for attorney’s fees
granted; sanctions imposed; and remanded for further proceedings not
inconsistent with opinion. (TAYLOR and DAMOORGIAN, JJ., concur.)

__________________

1The
record indicates the Appellant also filed proceedings seeking the same relief
in the Eleventh Judicial Circuit and the Third District Court of Appeal.

2Because
the claims were not properly before the circuit court, neither the circuit
court’s dismissal nor this Court’s affirmance reach the merits of the
Appellant’s claims.

3The
appellant’s amended response to order to show cause, filed after the Appellee replied
to the original response, was filed without seeking leave of court.

4The
original response concluded with a “request that this Honorable Court dismiss
the Appellee[‘s] [ ] frivolous and completely meritless Motion for Appellate
Attorney’s Fees and impose sanctions against the Appellee [ ] in the amount of
Ten Thousand Dollars ($10,000.00), and require the payment of same within ten
days.”

5Rule
1.540(b) is modeled after the Federal Rules and, therefore, we look to federal
case law to aid in our interpretation of the rule. Molinos Del S.A. v. E.I.
DuPont de Nemours & Co., 947 So. 2d 521, 524 (Fla. 4th DCA 2006)
(looking to federal case law interpreting Rule 1.540(b) and noting “the federal
rule is substantially the same as Rule 1.540(b).”); Casteel v. Maddalena,
109 So. 3d 1252, 1256 (Fla. 2d DCA 2013) (“because rule 1.540 was modeled after
Federal Rule of Civil Procedure 60, we may resort to federal case law to aid us
in our interpretation of rule 1.540.”).

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