INTERCONTINENTAL PROPERTIES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
U.S. SECURITY SERVICES, INC., APPELLEE
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Intercontinental Properties appeals from an order granting U.S. Security Services relief from an adverse jury verdict based on alleged use of a forged document. The court vacates the relief order because Intercontinental was not properly noticed of the motion and hearing, and remands for an evidentiary hearing on notice and, if necessary, a de novo hearing on the merits of the forgery claim.
An order entered without proper notice is void. The court vacates the relief order and remands for an evidentiary hearing to determine whether Intercontinental actually received notice. If notice was received, the order will be reinstated. If not, the trial court must conduct a full de novo hearing on the merits of U.S. Security's forgery claim with Intercontinental able to raise all defenses.
[1] An order or judgment entered without proper notice is void.
[2] A motion for relief under Florida Rule of Civil Procedure 1.540(b) may itself be subject to relief under the same rule.
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Establishes the core holding that orders entered without proper notice are void and requires remand for hearing on notice issue.
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Join FLexlaw to unlock all legal intelligenceA jury verdict and judgment was entered against U.S. Security Services in favor of Intercontinental Properties. U.S. Security Services filed a motion …
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SCHWARTZ, Chief Judge.
This appeal is from an order granting the defendant-appellee U.S. Security Services, Inc. relief under Florida Rule of Civil Procedure 1.540(b) from an adverse jury verdict and judgment on the ground that the plaintiff-appellant Intercontinental Properties, Inc. had relied upon a forged document at the trial. Immediately after the entry of the order under review, Intercontinental filed a motion, with a supporting affidavit, to set it aside. The basis of this application, which was itself essentially based on 1.540(b), was that, notwithstanding a certificate of service, Intercontinental's counsel had been given no notice of the defendant’s 1.540 motion and hearing. The trial judge summarily denied Intercontinental’s motion without taking testimony. This was error. Since an order or judgment entered without proper notice is void,1 Shields v. Flinn, (Fla. 3d DCA Case no. 87-1733, opinion filed, October 27,1987) [12 FLW 2473]; Hammett v. Hammett, 510 So. 2d 632 (Fla. 3d DCA 1987); Falkner v. Amerifirst Fed. Sav. & Loan, 489 So. 2d 758 (Fla. 3d DCA 1986), we vacate the 1.540 order in U.S. Security’s favor and remand for an evidentiary hearing as to whether that notice was in fact received by Intercontinental. Compare Hammett, 510 So. 2d at 632 with Scott v. Johnson, 386 So. 2d 67 (Fla. 3d DCA 1980).
If the court finds that this was the case, it shall reinstate the order granting relief. See Shields v. Flinn, 12 FLW at 2473. If the determination is to the contrary — that is, that the order was entered without appropriate notice — the order shall stand vacated and the trial court shall conduct a full adversary hearing de novo on the merits of U.S. Security’s motion for relief on the forgery issue, including any defenses Intercontinental may raise to that motion, and enter a subsequent order in accordance with its conclusions.
Vacated, remanded with directions.
. There is no reason why an order entered under Rule 1.540 is not itself subject to relief under that same rule. Contrast Crocker Investments, Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305 (Fla. 3d DCA 1987) (no successive motions under 1.540 to review same order).
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Paul v. Wells Fargo Bank, N.A., 68 So. 3d 979 (Fla. 2d DCA 2011)…g, Wells Fargo did not object that the motion was successive. Additionally, an order entered under rule 1.540, like the one appealed here, is itself subject to relief under that same rule. See Intercontinental Props., Inc. v. U.S. Sec. Servs., Inc., 515 So. 2d 321, 322 (Fla. 3d DCA 1987); Nichols v. Hepworth, 604 So. 2d 574, 575-76 (Fla. 4th DCA 1992). Conclusion Generally, we review an order denying a motion to vacate a default for abuse of discretion. See Szucs, 893 So. 2d at 709. We conclude that the tri…
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Sperdute v. Household Realty Corp., 585 So. 2d 1168 (Fla. 4th DCA 1991)…contention that the trial court erred in denying them the opportunity to testify at the evidentiary hearing on their motion to vacate the default final judgment of foreclosure. As in Intercontinental Properties Inc. v. U.S. Security Services, Inc., 515 So. 2d 321 (Fla. 3rd DCA 1987), the trial court in the instant case failed to conduct an adequate evidentiary hearing. Obviously, an evidentiary hearing involves taking evidence. Neither the submission of affidavits nor argument of counsel is sufficient to con…
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Lidia R. Delancer v. Advanced Mortg. Inv. Co., Inc., 546 So. 2d 130 (Fla. 3d DCA 1989)…ticed for trial. We reverse for disposition on the merits both because (a) the record shows an unresolved issue as to whether the defendant actually received the notice of trial; see Intercontinental Properties, Inc. v. U.S. Security Services, Inc., 515 So. 2d 321 (Fla. 3d DCA 1987); Hammett v. Hammett, 510 So. 2d 632 (Fla. 3d DCA 1987), and (b) even assuming the defendant was properly noticed, the trial judge erred by, in effect, defaulting her in entering judgment without conducting even an uncontested tria…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So. 2d 758 (Fla. 3d DCA 1986)
- Scott v. Johnson, 386 So. 2d 67 (Fla. 3d DCA 1980)
- Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305 (Fla. 3d DCA 1987)
- Hammett v. Hammett, 510 So. 2d 632 (Fla. 3d DCA 1987)