LIBERTY MUTUAL INSURANCE COMPANY, APPELLANT,
v.
DARRELL E. LYONS, ET AL., APPELLEES
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Liberty Mutual appealed the trial court's denial of its Rule 1.540 motion seeking relief from sanctions imposed for failure to participate in mediation. The court reversed and remanded because the trial court should have held an evidentiary hearing to resolve the factual dispute over whether Liberty received notice of the sanctions hearing.
The trial court erred in denying the Rule 1.540 motion without an evidentiary hearing. While a mere claim that a document was lost in the mail is insufficient to rebut a certificate of service, a denial of receipt creates a factual dispute requiring an evidentiary hearing to determine whether Liberty actually received notice.
[1] A trial court must conduct an evidentiary hearing on a motion for relief from judgment filed under Rule 1.540(b)(1) when the movant claims they did not receive notice of…
[2] A litigant's claim of excusable neglect due to failure to receive notice of a hearing generally requires setting aside a prior judgment, decree, or order.
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“Generally, 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.”
Establishes the legal standard for relief under Rule 1.540 based on lack of notice
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLiberty Mutual and Lyons settled a workers' compensation claim. Liberty sent Lyons a check for $15,000 but then placed a stop payment without notice, …
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COBB, Judge.
The issue on this appeal is whether the trial court erred in denying relief pursuant to Rule 1.540, Florida Rules of Civil Procedure, without conducting an evidentiary hearing.
The record indicates that there was a worker’s compensation settlement whereby Liberty Mutual Insurance Company (Liberty) was obligated to pay a total of $15,-000.00 with $11,250.00 to be paid directly to Darrell E. Lyons (Lyons) and $3,750.00 payable as attorney’s fees. A check was subsequently sent to Lyons in the amount of $15,000.00 and deposited.
Liberty, without notifying Lyons, placed a stop payment on the instrument whereby Mid-State Federal Savings (Mid-State) began dishonoring checks for insufficient funds with one result being that Lyons was charged with obtaining property with a worthless check. This charge was later dismissed when it was shown that Lyons had sufficient funds on deposit at the time the check was presented to Mid-State for payment.
In an action filed against Liberty and Mid-State, Lyons claimed that Liberty breached the settlement agreement by stopping payment on the check and failing to give notice. Additionally, Lyons claimed that Liberty breached its duty of reasonable care by failing to properly remit settlement proceeds.
At this point in time, the parties agreed to mediation pursuant to Rule 1.700, et seq., Pla.R.Civ.P. At the mediation hearing, Lyons made some opening statements, after which Liberty decided to leave. Subsequently, Lyons moved for sanctions against Liberty claiming that Liberty’s failure to participate violated the rules governing mediation and was in bad faith. Lyons requested costs and asked the trial court to strike Liberty’s affirmative defenses.
On October 13, 1992, the trial court signed an order granting a hearing on the request by Lyons for sanctions. A certificate of service, signed by a judicial secretary, showed that a copy of the order had been sent to Liberty and Lyons’ attorneys on October 15, 1992. Liberty, however, claimed that its counsel never received this order noticing a hearing. Thus, an ex parte hearing was held on November 9, 1992, and as a result, the trial court imposed sanctions against Liberty as requested.
Liberty filed a motion for relief from the order imposing sanctions pursuant to Rule 1.540(b)(1), Florida Rules of Civil Procedure, claiming they did not receive notice of the November 9, 1992 hearing. On December 14, 1992, the trial court denied the 1.540 motion.
Generally, 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 receipt does create a question of fact which indicates an evidentiary 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 Liberty’s 1.540 motion for relief from the order imposing sanctions is reversed and the cause remanded for an evidentiary hearing.
REVERSED AND REMANDED.
DAUKSCH and GOSHORN, JJ„ concur.
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Schuman v. Int'l Consumer Corp., 50 So. 3d 75 (Fla. 4th DCA 2010)…Id. (citation omitted). Further, “[generally, 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.” Liberty Mut. Ins. Co. v. Lyons, 622 So. 2d 621, 622 (Fla. 5th DCA 1993). In the present case, appellant claims to have not received notice of the pending trial held in January 2009. Nothing in the record indicates that appellant received notice of the trial date. The prior counsel, who withdrew…
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Burns v. Bankamerica Nat'l Tr. Co., 719 So. 2d 999 (Fla. 5th DCA 1998)…r, since they denied having been served, they argue that they should have been given the opportunity to rebut the presumption by presenting clear and convincing evidence that the summons was not served. Id. See also Liberty Mutual Ins. Co. v. Lyons, 622 So. 2d 621 ( Fla. 5th DCA 1993). We agree the trial court should have permitted the Burnses to introduce proof that they were in California when they allegedly were served with process. See Myrick v. Walters, 666 So. 2d 249 (Fla. 2d DCA 1996) (trial court err…
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Purdue v. R. J. Reynolds Tobacco Co., 259 So. 3d 918 (Fla. 2d DCA 2018)…ction. It is true that "[a] party can seek relief under rule 1.540(b) when he or she does not receive a copy of an order entered by the court." Waters v. Childers, 198 So. 3d 1007, 1008 (Fla. 1st DCA 2016); see also Liberty Mut. Ins. Co. v. Lyons, 622 So. 2d 621, 622 (Fla. 5th DCA 1993) ("Generally, a prior judgment, decree or order must be set aside where there is excusable neglect in the - 6 - form of a litigant's failure to receive notice of a pending hearing or trial."). However, a motion to vacate un…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Robert M. Gibson et ux. v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980)
- 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)
- Taylor v. Bowles, 570 So. 2d 1093 (Fla. 4th DCA 1990)
- Metro. Dade Cnty. v. United States Fid. & Guar. Co., 584 So. 2d 100 (Fla. 3d DCA 1991)
- Goudie v. Garcia, 584 So. 2d 100 (Fla. 3d DCA 1991)