FRANK A. SPERDUTE AND KATHERYN M. SPERDUTE, APPELLANTS,
v.
HOUSEHOLD REALTY CORPORATION, APPELLEE
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The Sperdutes appealed a trial court's denial of their motion to vacate a default foreclosure judgment, claiming they never received notice of the hearing. The court reversed, holding that the trial court erred by conducting an evidentiary hearing but refusing to allow the Sperdutes to testify, thereby denying them a fair opportunity to contest the factual issues.
The trial court erred in denying the Sperdutes' request to testify at the evidentiary hearing because an evidentiary hearing requires the taking of evidence and affidavits plus counsel arguments are insufficient to constitute such a hearing. A party must be allowed to testify to have a fair opportunity to contest factual issues.
[1] A trial court errs by denying a party the opportunity to testify at an evidentiary hearing on a motion to vacate a default judgment.
[2] An evidentiary hearing requires the taking of evidence, and the submission of affidavits or argument of counsel alone is insufficient.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing.”
Establishes the core legal principle that an evidentiary hearing requires actual evidence and testimony, not just written submissions and argument.
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Join FLexlaw to unlock all legal intelligenceThe Sperdutes claimed they never received the amended notice of hearing on Household Realty's motion for summary judgment, causing them to fail to app…
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GUNTHER, Judge.
Frank A. Sperdute and Katheryn M. Sperdute (Sperdutes) appeal the trial court’s order denying their motion to vacate the default final judgment of foreclosure entered against them. We reverse.
The Sperdutes claim they never received the amended notice of hearing on Household Realty Corporation’s (Household) motion for summary judgment. Consequently, they failed to appear and a default final judgment was entered against them.
Once the Sperdutes learned of the default final judgment of foreclosure, they timely filed a motion to vacate the final judgment on the grounds of lack of notice and requested an evidentiary hearing on the motion. In denying the Sperdutes’ motion to vacate, the trial court apparently based its ruling solely on the affidavits filed and arguments of counsel without permitting the Sperdutes an opportunity to testify as they had orally requested. Thus, although the trial court entertained a purported evidentiary hearing, the trial court denied the Sperdutes’ request to testify at the hearing on their motion.
We agree with the Sperdutes’ 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 constitute an evidentiary hearing. Since the purpose of an evidentiary hearing is to allow a party to “have a fair opportunity to contest” the factual issues, this purnose is not effectuated if a party is not allowed to testify. See Malzahn v. Malzahn, 541 So. 2d 1359, 1360 (Fla. 4th DCA 1989). Furthermore, it is reversible error for a trial court to deny a party an evidentiary hearing to which he is entitled. Southeast Mortgage Co. v. Andrews, 561 So. 2d 33 (Fla. 4th DCA 1990).
Thus, by denying the Sperdutes’ request to testify at the evidentiary hearing on their motion to vacate the default final judgment, the trial court effectively denied them an opportunity to be heard. Consequently, the trial court order denying the Sperdutes’ motion to vacate is reversed and the case remanded to the trial court for an evidentiary hearing which is necessary only to resolve the factual dispute as to whether the appellants received notice of the hearing for entry of a final judgment of foreclosure. If the court were to determine at such a hearing that notice was not properly given, it would only affect that portion of the final judgment which deals with unliq-uidated damages, namely the amount of attorney's fees. As to the other matters, they are concluded by the clerk’s default from which appellants have not sought relief.
REVERSED AND REMANDED.
WARNER, J., concurs.
FARMER, J., concurring in result only.
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Chi Luu Linville v. Home Sav. OF Am., FSB, 629 So. 2d 295 (Fla. 4th DCA 1993)…ppellant’s motion without an evidentiary hearing. This court has previously expressed its view that neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing. Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA 1991). The unrebutted allegations1 contained in appellant’s motion to quash service of process and the supporting affidavit, if proven by clear and convincing evidence, would establish appellee’s failure to effect valid service o…
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Eyal Avi-Isaac v. Wells Fargo Bank, 59 So. 3d 174 (Fla. 2d DCA 2011)…Shlishey the Best, Inc. v. CitiFinancial Equity Servs., Inc., 14 So. 3d 1271, 1275 (Fla. 2d DCA 2009). And “it is reversible error for a trial court to deny a party an evidentiary hearing to which he is entitled.” Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA 1991) (determining that the trial court erred in not permitting the defendants to testify regarding the subject of notice at the hearing on their motion to vacate a default final judgment of foreclosure). Of course, “[njeither th…
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Fern, Ltd. v. Rd. Legends, Inc., 698 So. 2d 364 (Fla. 4th DCA 1997)…FSB, 629 So. 2d 295 (Fla. 4th DCA 1993),we held: This court has previously expressed its view that neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing. Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA 1991). The un-rebutted allegations contained in appellant’s motion to quash service of process and the supporting affidavit, if proven by clear and convincing evidence, would establish appellee’s failure to effect valid service o…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Intercontinental Props., Inc. v. U.S. Sec. Servs., Inc., 515 So. 2d 321 (Fla. 3d DCA 1987)
- Malzahn v. Lilliam Malzahn, 541 So. 2d 1359 (Fla. 4th DCA 1989)
- State v. Larson, 561 So. 2d 33 (Fla. 4th DCA 1990)
- Theodtis Primous v. State, 561 So. 2d 33 (Fla. 4th DCA 1990)