CHARLENE BIEN-AIME, APPELLANT,
v.
MSRH BOARD WALK, LLC, APPELLEE
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The Fourth District Court of Appeal reversed the trial court's denial of a Rule 1.540 motion to vacate a dismissal order where the appellant demonstrated she never received a copy of the final order, and the appellee conceded vacatur was appropriate.
The trial court abused its discretion in refusing to vacate and re-enter the order of dismissal. When a party demonstrates that he or she did not receive a copy of a final order, the trial court must vacate and re-enter that order to permit the party to appeal.
[1] A trial court abuses its discretion when it refuses to vacate and re-enter a final order to permit a party to appeal when that party demonstrates they did not receive a c…
[2] Rule 1.080(h)(1) requires that conformed copies of all orders must be mailed to the parties.
Previewing 2 of 3 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“Rule 1.080(h)(1) requires that conformed copies of all orders must be mailed to the parties. When a party demonstrates that he or she did not receive a copy of a final order, the trial court abuses its discretion in refusing to vacate and re-enter that order to permit that party to appeal.”
Establishes the controlling legal standard: non-receipt of a final order requires the trial court to vacate and re-enter it
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Join FLexlaw to unlock all legal intelligenceThe trial court dismissed the case for lack of prosecution on August 27, 2009. In October 2009, appellant filed a motion to vacate and re-enter the fi…
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The issue in this appeal is whether the trial court abused its discretion in denying appellant’s Rule 1.540 motion to vacate the order dismissing the case for lack of prosecution. The final order of dismissal was rendered on August 27, 2009. In October 2009, appellant filed a motion to vacate and re-enter the final judgment for purposes of appeal. After a hearing, appellant supplemented her motion with affidavits stating that neither of appellant’s trial attorneys received a copy of the final order of dismissal. Appellee filed no evidence to rebut these affidavits and conceded that va-catur and re-entry of the order to permit an appeal was appropriate. The trial court, nevertheless, denied the motion.1
Rule 1.080(h)(1) requires that conformed copies of all orders must be mailed to the parties. When a party demonstrates that he or she did not receive a copy of a final order, the trial court abuses its discretion in refusing to vacate and re-enter that order to permit that party to appeal. Broward County v. Eller Drive Ltd. P’ship, 873 So.2d 534 (Fla. 4th DCA 2004); Rosso v. Golden Surf Towers Condo. Ass’n, 711 So.2d 1298 (Fla. 4th DCA 1998); Spanish Oalcs Condo. Ass’n v. Compson of Fla., Inc., 453 So.2d 838 (Fla. 4th DCA 1984). In this case, the evidence supports appellant’s contention that she did not receive a copy of the order, and appellee produced no evidence in rebuttal. Accordingly, we find that the trial court abused its discretion in refusing to vacate and re-enter the order of dismissal. We reverse and remand for re-entry of the final order of dismissal.2
Reversed and remanded.
FARMER, DAMOORGIAN and LEVINE, JJ., concur.
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DTRS Intercontinental Miami, LLC v. A.K. Gift Shop, Inc., 77 So. 3d 785 (Fla. 3d DCA 2011)…d and remanded for entry of an immediate writ of possession. . In contrast, a trial court errs in refusing to vacate orders that are not mailed to the parties where it affects a party's right to appeal. See, e.g., Bien-Aime v. MSRH Board Walk, LLC, 41 So. 3d 1117, 1117 (Fla. 4th DCA 2010); Boelter v. Boelter, 39 So. 3d 1282, 1284 (Fla. 2d DCA 2010); Hialeah Hotel, Inc. v. Woods, 778 So. 2d 314, 316 (Fla. 3d DCA 2000); Bennett v. Ward, 667 So. 2d 378, 380 n. 3 (Fla. 1st DCA 1995). . Counsel for A.K. Gift Sho…
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United Funding, LLC v. Brandao, 77 So. 3d 710 (Fla. 3d DCA 2011)…Fla. 5th DCA 1980) (holding that “mistake or inadvertence” under 1.540(b) occurred due to the court’s failure to mail copies of the judgment to the parties and no substitution for that formal notice was presented); Bien-Aime v. MSRH Board Walk, LLC, 41 So. 3d 1117 (Fla. 4th DCA 2010) (finding that the court abused its discretion in denying appellant’s 1.540 motion to vacate the order when appellant never received a copy of the final order of dismissal and appellee filed no evidence to rebut the argument); and…
Authorities Cited
- Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958 (Fla. 4th DCA 1983)
- Guerra v. Selsdon Mar. Corp., 711 So. 2d 1298 (Fla. 3d DCA 1998)
- Rosso v. Golden Surf Towers Condo. Ass'n, 711 So. 2d 1298 (Fla. 4th DCA 1998)
- Broward Cnty. v. Eller Drive Ltd. P'ship, 873 So. 2d 534 (Fla. 4th DCA 2004)
- Spanish Oaks Condo. Ass'n, Inc. v. Compson OF Fla., Inc., 453 So. 2d 838 (Fla. 4th DCA 1984)