JOHN N. GOUDIE, AND CONSTANCE GOUDIE, APPELLANTS,
v.
B. GARCIA, AS TRUSTEE, APPELLEE
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The court reversed and remanded because defendants' affidavits raised a genuine factual dispute about whether they received notice of the final hearing, which if true would entitle them to relief under Florida Rule 1.540(b)(4).
When a defendant asserts lack of notice of a final hearing and the plaintiff disputes it, an evidentiary hearing must be held to resolve the factual conflict, and if lack of notice is found, relief from judgment must be granted.
[1] Lack of notice of a final hearing, if established, entitles a defendant to relief from judgment under Florida Rule 1.540(b)(4), and when notice is disputed, an evidentiar…
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Join FLexlaw to unlock all legal intelligenceJohn and Constance Goudie appealed an order denying their motion for relief from judgment, asserting in their affidavits that they did not receive re-…
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PER CURIAM.
John and Constance Goudie, defendants below, appeal an order denying their motion for relief from judgment. While some of the matters raised by defendants’ affidavits are legally insufficient to warrant relief from judgment, the affidavits assert in part that they did not receive the re-notice of the final hearing. At that hearing, defendants’ pleadings were stricken and judgment was entered against them.
Defendants’ assertion that they did not have notice of the final hearing, if true, requires relief from judgment under Rule 1.540(b)(4), Florida Rules of Civil Procedure. See Falkner v. Amerifirst Fed. Sav. & Loan Ass’n, 489 So. 2d 758 (Fla. 3d DCA 1986); see also Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d DCA 1988); Reicheinbach v. Southeast Bank, 462 So. 2d 611, 612 (Fla. 3d DCA 1985). Appellee B. Garcia, plaintiff below, disputes the assertion of non-notice. That being so, there must be an evidentiary hearing to resolve the conflict. Scutieri v. Miller, 584 So. 2d 15 (Fla. 3d DCA 1991); see also World on Wheels of Miami, Inc. v. Int’l Auto Motors, Inc., 569 So. 2d 836, 837 n. 1 (Fla. 3d DCA 1990). If the court finds the defendants did not have notice, then there must be a new final hearing.
Reversed and remanded.
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Liberty Mut. Ins. Co. v. Lyons, 622 So. 2d 621 (Fla. 5th DCA 1993)…he mail is insufficient, standing alone, to rebut a presumption created by a certificate of service. On the other hand, the denial of receipt does create a question of fact which indicates an eviden-tiary hearing was necessary. See Goudie v. Garcia, 584 So. 2d 100 (Fla. 3d DCA1991); Scutieri v. Miller, 584 So. 2d 15, 16 (Fla. 3d DCA1991); World on Wheels of Miami, Inc. v. International Auto Motors, Inc., 569 So. 2d 836, 837 n. 1 (Fla. 3d DCA1990). Accordingly, the order of the trial court which denied Libert…
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Power v. Grow Grp., Inc., 697 So. 2d 1286 (Fla. 5th DCA 1997)…receive notice of a hearing which resulted in a judgment against her, and the other party disputes this contention, an evidentiary hearing is required to resolve the matter. Scutieri v. Miller, 584 So. 2d 15, 16 (Fla. 3d DCA 1991); Goudie v. Garcia, 584 So. 2d 100, 101 (Fla. 3d DCA 1991); see Liberty Mut. Ins. Co. v. Lyons, 622 So. 2d 621, 622 (Fla. 5th DCA 1993). The court cannot determine the credibility of appellant’s claim of lack of notice without hearing her evidence. The court is not bound to believe h…
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Jose and Aracelli Mendoza v. Chase Home Fin., LLC, 126 So. 3d 350 (Fla. 3d DCA 2013)…ny event. While we both agree with this conclusion arid are sympathetic with the considerations which drove it, the law is clear that, in the absence of an appropriate notice of trial, none of these factors make any difference. See Goudie v. Garcia, 584 So. 2d 100 (Fla. 3d DCA 1991); Shlishey the Best, Inc. v. Citifinancial Equity Servs., Inc., 14 So. 3d 1271 (Fla. 2d DCA 2009).…
Authorities Cited
- Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So. 2d 758 (Fla. 3d DCA 1986)
- Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988)
- Reicheinbach v. Se. Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985)
- Scutieri v. Miller, 584 So. 2d 15 (Fla. 3d DCA 1991)
- World ON Wheels OF Miami, Inc. v. Int'l Auto Motors, Inc., 569 So. 2d 836 (Fla. 3d DCA 1990)