Larry Klayman v. Portfolio Media, Inc., et al.,

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
LARRY KLAYMAN,
Appellant,
v.
PORTFOLIO MEDIA, INC., et al.,
Appellees.
No. 4D2025-1677
[May 6, 2026]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach 	County; 	John 	Joseph 	Parnofiello, 	Judge; 	L.T. 	Case 	No.
502024CA010447XXXAMB.
Larry Elliot Klayman, Boca Raton, pro se.
Rachel Elise Fugate and Yelan Escalona of Shullman Fugate PLLC,
Tampa, for appellees.
S HEPHERD, J.
Appellant, Larry Klayman, seeks review of the circuit court’s (1) order
granting 	appellees’ 	motion 	to 	dismiss 	the 	amended 	complaint 	and
determining 	entitlement 	to 	attorney’s 	fees, 	and 	(2) 	order 	denying
Klayman’s motion for rehearing. 	For the reasons discussed below, we
affirm.
Facts
Klayman initially filed a defamation action against Portfolio Media, Inc.
(d/b/a Law360), Khorri Atkinson, and Hailey Konnath (collectively, the
“Media Defendants”). 	The defamation action was based on six allegedly
defamatory 	statements 	published 	in 	Law360 	articles 	concerning
Klayman’s disciplinary proceedings and suspension from the practice of
law in Washington, D.C.
One statement reported that a circuit judge had described the issue
before another judge as whether Klayman had “committed fraud” when the
judge had, in fact, said “withdrew.” 	The Media Defendants asserted that

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this statement resulted from a transcription error and was corrected after
publication.
The Media Defendants moved to dismiss the defamation complaint,
arguing that most statements were protected by the fair-report privilege,
and no statements were defamatory or published with actual malice.
Following 	a 	hearing, 	the 	initial 	circuit 	court 	(“Defamation 	Court”)
dismissed the action with prejudice, concluding that five statements were
privileged and the remaining statement was not defamatory as a matter of
law. 	We affirmed the dismissal.
More than two years later, Klayman filed the present action under
Florida Rule of Civil Procedure 1.540 against the Media Defendants and
their counsel (collectively, the “appellees”). The complaint alleged that the
appellees committed fraud on the court by arguing in the defamation case
that the disputed statement was a transcription error and not made with
actual malice.
The appellees moved to dismiss, asserting that the claim was time-
barred and substantively deficient. 	Klayman filed an amended complaint
adding allegations that the alleged fraud led to a subsequent attorney’s
fees award. 	The appellees again moved to dismiss, citing Florida’s anti-
SLAPP statute as an additional basis for relief.
The circuit court granted the motion, concluding that the alleged
misconduct constituted intrinsic fraud subject to rule 1.540’s one-year
limitation, the claim lacked substantive merit, and the action violated the
anti-SLAPP statute. 	The circuit court found the appellees entitled to
attorney’s fees and denied rehearing. 	This appeal followed.
Discussion
We review an order granting a motion to dismiss de novo. 	Edwards v.
Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA 2011). 	“In reviewing an
order granting a motion to dismiss . . . [an appellate] court may not go
beyond the four corners of the complaint and must accept the facts alleged
therein and exhibits attached as true.” 	Swerdlin v. Fla. Mun. Ins. Tr., 162
So. 3d 96, 97 (Fla. 4th DCA 2014) (quoting Edwards, 51 So. 3d at 1213).
I. 	Rule 1.540’s Procedural Requirements
Klayman first argues that his rule 1.540 action was not procedurally
improper and, therefore, not time-barred.

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Florida Rule of Civil Procedure 1.540(b)(3) permits relief from a final
judgment based on fraud, but requires that such claims be raised within
one year of the challenged judgment. 	Although courts retain authority to
entertain independent actions for fraud upon the court, that remedy is
limited to cases involving extrinsic fraud. See Parker v. Parker, 950 So. 2d
388, 392 (Fla. 2007); DeClaire v. Yohanan, 453 So. 2d 375, 377 (Fla. 1984)
(“[O]nly extrinsic fraud may constitute fraud on the court.”), superseded
by rule on other grounds as stated in Lefler v. Lefler, 776 So. 2d 319, 322
n.1 (Fla. 4th DCA 2001).
Florida 	courts 	distinguish 	intrinsic 	from 	extrinsic 	fraud 	based 	on
whether the alleged conduct prevented a party from fully presenting a
case. 	Extrinsic fraud occurs where a party is deprived of the opportunity
to participate in the proceeding. 	See Parker, 950 So. 2d at 391; Voce v.
Wachovia Mortg., 174 So. 3d 545, 548 (Fla. 4th DCA 2015); Fair v. Tampa
Elec. Co., 27 So. 2d 514, 515 (Fla. 1946); NAFH Nat’l Bank v. Aristizabal,
117 	So. 	3d 	900, 902 	(Fla. 	4th 	DCA 2013); 	Greenwich Ass’n, Inc. v.
Greenwich Apartments, Inc., 979 So. 2d 1116, 1118 (Fla. 3d DCA 2008);
Se. Bank, N.A. v. Almeida, 693 So. 2d 1015, 1019 (Fla. 3d DCA 1997).
To 	establish 	extrinsic 	fraud, 	or 	“fraud 	on 	the 	court,” 	the 	alleged
misconduct must go to the case’s core issue and be supported by clear
and 	convincing 	evidence 	of 	an 	unconscionable 	scheme 	designed 	to
interfere with the judicial process. 	See, e.g., Beselear v. Avatar Prop. &
Cas. Ins. Co., 291 So. 3d 137, 140 (Fla. 4th DCA 2020). 	We have stated:
[T]he extreme sanction of dismissal [for fraud on the court]
should be imposed only where it can be demonstrated, clearly
and convincingly, that a party has sentiently set in motion
some unconscionable scheme calculated to interfere with the
judicial system’s ability impartially to adjudicate a matter by
improperly influencing the trier [of fact] or unfairly hampering
the presentation of the opposing party’s claim of defense. The
scheme must go to the very core issue at trial.
Gilbert v. Eckerd Corp. of Fla., Inc., 34 So. 3d 773, 775 (Fla. 4th DCA 2010)
(internal and external citations omitted); cf. Bob Montgomery Real Est. v.
Djokic, 858 So. 2d 371, 374 (Fla. 4th DCA 2003) (reversing dismissal where
evidence 	of 	misconduct 	was 	“tenuous 	and 	conflicting”); 	Bertrand 	v.
Belhomme, 892 So. 2d 1150, 1153 (Fla. 3d DCA 2005) (reversing dismissal
where the record did not establish an intent to deceive or willful bad faith).
“[I]ntrinsic fraud, on the other hand, applies to fraudulent conduct that
arises within a proceeding and pertains to the issues in the case that have

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been tried or could have been tried.” 	Parker, 950 So. 2d at 391 (citation
omitted); Johnson v. Wells, 73 So. 188, 191 (Fla. 1916); Wescott v. Wescott,
444 So. 2d 495, 497 (Fla. 2d DCA 1984). 	Such matters must be raised
within 	the 	one-year 	limitation 	enumerated 	in 	Florida 	Rule 	of 	Civil
Procedure 1.540(b). 	See Arrieta-Gimenez v. Arrieta-Negron, 551 So. 2d
1184, 1185 (Fla. 1989); Guerriero v. Schaub, 579 So. 2d 370, 371 (Fla. 4th
DCA 1991).
Here, 	the 	alleged 	misconduct—the 	appellees’ 	litigation 	position
regarding 	a 	transcription 	error 	and 	lack 	of 	actual 	malice—occurred
entirely within the defamation proceeding and addressed issues squarely
before 	the 	Defamation 	Court. 	Klayman 	actively 	participated 	in 	that
proceeding, presented argument, and received an adverse ruling on the
merits.
The limitation or denial of discovery occurring after the lawsuit was
dismissed also does not transform intrinsic fraud into extrinsic fraud. The
record 	reflects 	that 	the 	Defamation 	Court 	correctly 	dismissed 	the
defamation action on legal grounds, concluding that the claims failed as a
matter 	of 	law. 	These 	circumstances 	confirm 	that 	Klayman 	was 	not
deprived of his day in court. 	See Almeida, 693 So. 2d at 1020.
Because the allegations concern intrinsic fraud, rule 1.540(b)’s one-
year limitation applies and renders the allegations untimely.
Klayman next contends that his claim is timely because it was filed
within one year of subsequent attorney’s fees orders. 	This argument fails
because rule 1.540 measures timeliness from the entry of the challenged
judgment, not from later collateral proceedings. 	Fla. R. Civ. P. 1.540(b);
see also Lyons Heritage of Tampa, LLC v. Phillips, 385 So. 3d 656, 661 (Fla.
2d 	DCA 	2024). 	Allowing 	otherwise 	would 	undermine 	the 	finality 	of
judgments. 	See Romero v. Wells Fargo Bank, N.A., 209 So. 3d 633, 635
(Fla. 2d DCA 2017).
Accordingly, 	the 	circuit 	court 	properly 	dismissed 	the 	action 	as
untimely.1
II. 	Anti-SLAPP Statute
1 Klayman also argues that, in addition to timely filing his rule 1.540 motion, he
sufficiently alleged fraud in the motion. As discussed above, however, the motion
was not timely filed, and we need not address the substantive merit of his
intrinsic fraud claims.

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Klayman further argues that Florida’s anti-SLAPP statute does not
apply as a basis for an award of attorney’s fees.
Florida’s 	anti-SLAPP 	statute, 	section 	768.295(3), 	Florida 	Statutes
(2024), 	prohibits 	claims 	that 	are 	both 	“without 	merit” 	and 	brought
“primarily because” the opposing party “exercised the constitutional right
of free speech in connection with a public issue.” 	§ 768.295(3), Fla. Stat.
(2024). 	The statute was enacted to protect participation in matters of
public 	concern 	and 	to 	provide 	an 	expeditious 	remedy, 	including
mandatory 	attorney’s 	fees, 	when 	a 	party 	is 	subjected 	to 	retaliatory
litigation. 	§ 768.295(1), (4), Fla. Stat. (2024). 	We, and other Florida
appellate courts, have emphasized that the statute creates a substantive
right not to be burdened by meritless suits targeting protected activity.
See WPB Residents for Integrity in Gov’t, Inc. v. Materio, 284 So. 3d 555,
558–59 (Fla. 4th DCA 2019); see also McQueen v. Baskin, 377 So. 3d 170,
175–76 (Fla. 2d DCA 2023).
Klayman’s claims meet the first prong of the anti-SLAPP statute. 	The
conduct giving rise to Klayman’s motion—news reporting on attorney
disciplinary proceedings and litigation advocacy—falls within the statute’s
definition of protected activity.
The anti-SLAPP statute applies broadly to “any lawsuit, cause of action,
claim, 	cross-claim, 	or 	counterclaim” 	that 	targets 	protected 	speech,
therefore including Klayman’s rule 1.540 motion. 	§ 768.295(3), Fla. Stat.
(2024). The statute defines “free speech in connection with public issues”
to include statements made before a governmental entity or in connection
with 	issues 	under 	its 	review, 	as 	well 	as 	statements 	made 	in 	or 	in
connection 	with 	news 	reports 	and 	similar 	expressive 	works.
§ 768.295(2)(a), Fla. Stat. (2024).
Here, 	the 	Media 	Defendants’ 	publications 	reported 	on 	attorney
disciplinary proceedings, matters adjudicated through the judicial branch
and 	implicating 	the 	regulation 	of 	the 	legal 	profession, 	and 	therefore
constitute speech made in connection with issues under governmental
review. 	Likewise, their counsel’s arguments and filings in defending the
defamation action constitute statements made before a governmental
entity. 	Because Klayman’s claim is predicated entirely on that reporting
and litigation conduct, it necessarily targets protected activity and was
brought 	“primarily 	because” 	of 	the 	appellees’ 	exercise 	of 	their
constitutional rights within the meaning of the statute. 	See § 768.295(3),
Fla. Stat. (2024); see also § 768.295(1) (“It is the public policy of this state
that a person or governmental entity not engage in SLAPP suits because
such actions are inconsistent with the right of persons to exercise such

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constitutional rights of free speech in connection with public issues.”).
The circuit court also correctly found that Klayman met the anti-SLAPP
statute’s second prong—Klayman’s rule 1.540 motion substantively lacked
merit.2
Here, Klayman argues that, by asserting that the allegedly defamatory
statement 	resulted 	from 	an 	unintentional 	transcription 	mistake, 	the
appellees misled the Defamation Court into finding an absence of actual
malice. 	Klayman’s 	allegations, 	however, 	do 	not 	identify 	facts
demonstrating an intent to deceive, willfulness, or bad faith. 	See E.I.
DuPont de Nemours & Co. v. Sidran, 140 So. 3d 620, 650 (Fla. 3d DCA
2014); Bob Montgomery, 858 So. 2d at 374. Instead, Klayman argues that
a transcription error by a notable publication would be “unheard of,” and
that the Defamation Court nonetheless relied on this explanation. 	Such
speculation, 	without 	supporting 	factual 	allegations 	of 	deliberate
misconduct, is insufficient to establish fraud upon the court. 	See, e.g.,
Djokic, 858 So. 2d at 374.
Moreover, the premise of Klayman’s complaint is contradicted by the
dismissal order in the earlier defamation action. Klayman asserts that the
appellees induced the circuit court to find an absence of actual malice.
The order, however, does not address actual malice. 	Rather, the circuit
court dismissed the action on the grounds that five of the six statements
were 	protected 	by 	the 	fair-report 	privilege 	and 	that 	the 	remaining
statement was not defamatory as a matter of law. 	Because the dismissal
rested on privilege and non-defamatory meaning—not actual malice—the
challenged ruling did not rely on the appellees’ alleged misrepresentation
concerning the transcription error.
Nor 	does 	the 	record 	indicate 	that 	the 	alleged 	misrepresentation
concerned a central issue underlying the disposition. 	See Gilbert, 34 So.
3d at 775 (“The scheme must go to the very core issue at trial.”). Because
the dismissal rested on legal grounds unrelated to actual malice, the
alleged transcription-error explanation could not have been dispositive.
Id.
2 Klayman suggests that the anti-SLAPP statute’s “without merit” requirement is
equivalent to the “frivolous” requirement for imposing sanctions under section
57.105, Florida Statutes (2024). 	A claim, however, may lack legal merit even if
not sanctionable under section 57.105. 	See, e.g., Flynn v. Wilson, 398 So. 3d
1103 (Fla. 2d DCA 2024); see also Mastandrea v. Snow, 333 So. 3d 326 (Fla. 1st
DCA 2022).

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Accordingly, the allegations do not establish fraud on the court but
instead reflect an attempt to relitigate issues previously resolved adversely
to Klayman.
Because the claim is both meritless and directed at protected activity,
the 	anti-SLAPP 	statute 	applies. 	The 	statute 	supports 	an 	award 	of
attorney’s fees to the prevailing party.
We 	affirm 	the 	order 	dismissing 	the 	amended 	complaint 	and
determining appellees’ entitlement to attorney’s fees.
Affirmed.
L EVINE and FORST , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.