Florida Motion to Vacate a Judgment

Introduction

Key Things to Know

1. 1

   Florida's rule is Fla. R. Civ. P. 1.540(b), which provides relief from judgments, decrees, or orders. In practice it is often called a motion to vacate or a motion for relief from judgment. The court decides on motion and upon such terms as are just, so relief is never automatic.

2. 2

   There are five grounds: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, a prior judgment it rests on was reversed or vacated, or prospective application is no longer equitable. The rule's list of reasons ends at (5).

3. 3

   Every motion must be filed within a reasonable time. For grounds (1), (2) and (3), it must also be filed not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. The clock runs from entry, not from when you found out.

4. 4

   A void judgment under ground (4), and a ground (5) motion, are subject to the reasonable-time requirement rather than the 1-year cap. Do not wait: delay after you learn of the judgment can still make the motion untimely.

5. 5

   Filing does not by itself stop enforcement. Rule 1.540(b) says the motion does not affect the finality of the judgment or suspend its operation, and Small Claims Rule 7.190(b) says a motion under it does not affect the finality of a judgment or suspend its operation. Ask the court separately for a stay if you need one.

6. 6

   Small claims cases use Fla. Sm. Cl. R. 7.190(b), which has its own list of reasons. That motion shall be made within a reasonable time, and for (b)(1), (b)(2) and (b)(3) not more than 1 year after the judgment, order, or proceeding was entered or taken. Rule 1.500(d) says a final judgment entered after a default may be set aside in accordance with Rule 1.540(b); for a default judgment, also see /legal-document/set-aside-default/florida.

7. 7

   Rule 1.540(b) does not limit an independent action for relief or the court's power to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis and audita querela, and bills of review, are abolished, and relief is by motion under the rules or by an independent action.

Florida Requirements for Motion to Vacate

• Five Listed Grounds

  Fla. R. Civ. P. 1.540(b): relief only for (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud, misrepresentation, or misconduct of an adverse party; (4) a void judgment; (5) satisfaction, release, discharge, reversal of a prior judgment, or inequity of prospective application.

• Filing Deadline

  Rule 1.540(b): the motion must be filed within a reasonable time, and for grounds (1), (2) and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.

• No Automatic Stay

  Rule 1.540(b): the motion does not affect the finality of the judgment or suspend its operation. A stay of enforcement must be requested from the court.

• Small Claims Rule

  Fla. Sm. Cl. R. 7.190(b): its own listed reasons; made within a reasonable time and, for (b)(1)-(3), not more than 1 year after entry; it does not affect the finality of a judgment or suspend its operation.

• Independent Action Preserved

  Rule 1.540(b) does not limit an independent action for relief or setting aside a judgment for fraud upon the court; coram nobis, coram vobis, audita querela and bills of review are abolished.

• Default Judgments

  Rule 1.500(d): the court may set aside a default and any final judgment entered on it in accordance with Rule 1.540(b).

• Judgment Dates and Timeliness

  State the date the judgment was entered, the date you received notice, and a timeliness statement keyed to each ground's limit.

• Facts Supporting Each Ground

  Label each ground by its Rule 1.540(b) number, and give the specific facts for it.