AHMED M. ELMARIAH, APPELLANT,
v.
ASSOCIATES FINANCIAL SERVICES CORPORATION, APPELLEE
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The court reversed a default judgment for failure to provide an evidentiary hearing on whether the appellant received actual notice of the final hearing, despite a certificate of service in the file.
A trial court abuses its discretion by summarily denying a motion for rehearing without an evidentiary hearing when the defendant contests receipt of notice of the final hearing.
[1] A trial court abuses its discretion by summarily denying a motion for rehearing based on a certificate of service without conducting an evidentiary hearing to determine w…
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Join FLexlaw to unlock all legal intelligence“The question of whether or not notice was received by the appellant or his attorney is of sufficient import to justify an evidentiary hearing.”
Court explaining why summary denial of rehearing motion was improper
Appellant was sued on a promissory note and did not appear at the final hearing. The trial court entered judgment for $21,781.17 plus costs and attorn…
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PER CURIAM.
This is an appeal from a final judgment entered against the appellant in a suit on a promissory note. In its order mandating the recovery of $21,781.17 in principal, court costs and attorney’s fees, the trial court noted that the appellant and his attorney were not present at the final hearing. Appellant, on receipt of the final judgment, moved for rehearing and argued that neither he nor his attorney received notice of the final hearing. Appellee did not submit any counter-affidavits in rebuttal to the notice issue raised. Noting that the court file contained a notice of the hearing and a certificate of service on appellant’s attorney, the court summarily denied the appellant’s motion for rehearing without taking any evidence as to whether or not appellant or his attorney had actual notice of the final hearing. We reverse.
The question of whether or not notice was received by the appellant or his attorney is of sufficient import to justify an evidentiary hearing. Leonard v. Leonard, 397 So. 2d 425 (Fla.2d DCA 1981). Thus, the trial judge abused his discretion in summarily denying the motion for rehearing. We note, however, that a better procedure was available to the appellant for relief from the final judgment order pursuant to Florida Rule of Civil Procedure 1.540.
Accordingly, we REVERSE and REMAND to the lower court for the purpose of holding an evidentiary hearing on the issue of notice.
SCHEB, C. J., and RYDER and CAMPBELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Venetoff v. Fotina A. Papas, 732 So. 2d 453 (Fla. 2d DCA 1999)…rred in denying his motion for rehearing on the issue of whether he received notice. We agree. A party is entitled to an evidentiary hearing when the issue of whether notice was received has been raised. See Elmariah v. Associates Fin. Servs. Corp., 401 So. 2d 929, 929 (Fla. 2d DCA 1981). Because we find merit in Venetoffs second argument, we do not reverse for an evidentiary hearing on notice, but reverse for a trial on the merits. Venetoffs second argument challenges the trial court’s entry of a judgment…
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Safeway Ins. Co. & Bruce D. Sutton v. Saxon, 452 So. 2d 60 (Fla. 3d DCA 1984)…, however, no sworn motion to this effect was made, either during the trial or in post trial proceedings. See Vaughan v. Car Tapes, Inc., 135 Ga.App. 178, 217 S.E. 2d 436 (Ga.App.1975); Compare; Elmariah v. Associates Financial Services Corporation, 401 So. 2d 929 (Fla. 2d DCA 1981); Tri-State Systems, Inc. v. Village Outlet Stores, Inc., 135 Ga.App. 81, 217 S.E. 2d 399 (Ga.App.1975); Ellis v. Butterfield, 98 Idaho 644, 570 P. 2d 1334 (Idaho 1977). We also find no error in the trial court refusing to permit…
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Robinson v. Villarejo, 920 So. 2d 206 (Fla. 4th DCA 2006)…notice, the trial court summarily denied the motion. In this appeal, Robinson insists the trial court should not have denied her motion for rehearing without affording her an evidentiary hearing. We agree. See Elmariah v. Assocs. Fin. Servs. Corp., 401 So. 2d 929, 929 (Fla. 2d DCA 1981) (reversing denial of motion for rehearing claiming lack of notice of hearing that resulted in judgment and stating “[t]he question of whether or not notice was received by the appellant or his attorney is of sufficient import…
Authorities Cited
- Leonard v. Leonard, 397 So. 2d 425 (Fla. 2d DCA 1981)