RICHARD L. TAYLOR, APPELLANT,
v.
PATRICIA BOWLES, HOLIDAY ISLE MANAGEMENT CORPORATION AND STEPHEN J. CAMPBELL, APPELLEES
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Richard Taylor appealed a final judgment of $26,082.12 entered against him in his absence. The Fourth District Court of Appeal reversed, holding that the trial court abused its discretion by denying Taylor's motion to vacate the judgment when he had received no notice of the trial date or of his former counsel's withdrawal.
The trial court abused its discretion in denying Taylor's motion to vacate. When a party receives no notice of a trial date or of counsel's withdrawal, the trial court must grant a motion to vacate and enter final judgment.
[1] A trial court abuses its discretion when it denies a motion for relief from final judgment based on excusable neglect or mistake when the record shows the party had no no…
[2] A party moving for relief from final judgment under Florida Rule of Civil Procedure 1.540(b) must demonstrate mistake, inadvertence, surprise, or excusable neglect.
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Join FLexlaw to unlock all legal intelligence“Of course the trial judge exercises discretion in ruling on 1.540(b) RCP motions, but his exercise of discretion must rest upon facts ascertainable from the record.”
Establishes the standard for reviewing trial court discretion in Rule 1.540(b) motions
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Join FLexlaw to unlock all legal intelligenceA final judgment was entered on June 30, 1988, against Taylor and others in favor of Patricia Bowles. Taylor did not receive notice of the trial date …
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PER CURIAM.
On June 30, 1988, a final judgment in the amount of $26,082.12 was entered in favor of Patricia Bowles against Holiday Isle Management Corporation, Stephen J. Campbell, and Richard L. Taylor (Appellant). Appellant moved for relief from final judgment pursuant to Florida Rule of Civil Procedure 1.540(b) “for the reason that the Final Judgment was entered as a result of a mistake, inadvertence, surprise, or excusable neglect,” in that he “neither had notice of the trial date in this cause nor was he represented by counsel at the time this case proceeded to trial.” In an affidavit dated August 25, 1989, he reasserted that he “first became aware that a trial had been held in this case and a Final Judgment entered against [him] individually in October of 1988 when [he] received a batch of mail that was sent to his old office address.”
The trial court entered an order denying appellant’s motion for relief, from which he appeals. We reverse.
While we reject appellant’s contention that the trial court lacked jurisdiction over him, we agree with his second point; namely, that the trial court abused its discretion in denying his motion for relief from final judgment because he never received notice of the pending trial.
“Of course the trial judge exercises discretion in ruling on 1.540(b) RCP motions, but his exercise of discretion must rest upon facts ascertainable from the record.” Moss v. State Farm Mut. Auto. Ins. Co., 328 So. 2d 495, 496 (Fla. 4th DCA 1976). Without regard to whether a party believed that he had an attorney handling his case, when the record shows that a party had no notice of the hearing on a motion for withdrawal of counsel or knowledge that he should be at trial at a certain time, a motion to vacate judgment should be granted. Id. Under such circumstances, the denial of the motion constitutes an abuse of discretion, compelling reversal. See Clement v. Marcus, Stowell & Beye, Inc., 516 So. 2d 1137 (Fla. 4th DCA 1987). Appellant was not a party to the stipulation which allowed counsel to withdraw. He never received any notice of this withdrawal as required by Florida Rule of Judicial Administration 2.060(i), nor did he know that the trial would proceed without regard to whether substitute counsel was obtained by the other defendants or himself. Appellant also never received notice that the trial date or the calendar call had been set. When a party has no notice of a trial date, the trial court abuses its discretion when it proceeds with a final hearing and enters final judgment. Li v. Li, 442 So. 2d 327, 328 (Fla. 4th DCA 1983).
GLICKSTEIN and WARNER, JJ„ and OFTEDAL, RICHARD L., Associate Judge, concur.
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State v. Thurmond, 721 So. 2d 827 (Fla. 3d DCA 1998)…121 So. 2d 648, 654 (Fla.1960). Thus, we conclude that the lower court abused its discretion when it denied the state’s motion seeking to vacate the order of dismissal. See Watson v. Watson, 583 So. 2d 410, 411 (Fla. 4th DCA 1991); Taylor v. Bowles, 570 So. 2d 1093, 1094 (Fla. 4th DCA 1990); Clement v. Marcus, Stowell & Beye, Inc., 516 So. 2d 1137, 1138 (Fla. 4th DCA 1987). Hence, we reverse and remand with directions that this cause, including the writ of bodily attachment, be reinstated. Reversed. . This r…
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Watson v. Watson, 583 So. 2d 410 (Fla. 4th DCA 1991)…ell settled that a judgment entered without notice to a party is void. See Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988); Falkner v. Amerifirst Federal Savings & Loan Ass’n., 489 So. 2d 758 (Fla. 3d DCA 1986). As we stated in Taylor v. Bowles, 570 So. 2d 1093, 1094 (Fla. 4th DCA 1990), “[w]hen a party has no notice of a trial date, the trial court abuses its discretion when it proceeds with a final hearing.” See also Li v. Li, 442 So. 2d 327 (Fla. 4th DCA 1983). Accordingly, we reverse the trial court’s…
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Liberty Mut. Ins. Co. v. Lyons, 622 So. 2d 621 (Fla. 5th DCA 1993)…a prior judgment, decree or order must be set aside where there is excusable neglect in the form of a litigant’s failure to receive notice of a pending hearing or trial. Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA1980); see also Taylor v. Bowles, 570 So. 2d 1093 (Fla. 4th DCA1990). In the instant case, it would appear that an excuse that the document was probably lost in the mail is insufficient, standing alone, to rebut a presumption created by a certificate of service. On the other hand, the denial of re…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clement v. Marcus, 516 So. 2d 1137 (Fla. 4th DCA 1987)
- Simon v. Simon, 328 So. 2d 495 (Fla. 3d DCA 1976)
- Moss v. State Farm Mut. Auto. Ins. Co., 328 So. 2d 495 (Fla. 4th DCA 1976)
- Blankenship v. Myers, 442 So. 2d 327 (Fla. 4th DCA 1983)
- LI v. Chi Hsi LI, 442 So. 2d 327 (Fla. 4th DCA 1983)