FIA CARD

v.

ANA RODRIGUEZ

Before: TRAWICK, WALSH and REBULL, JJ.

WALSH, J.

Plaintiff, FIA Card Services, N.A., filed an action to collect a debt. The trial court dismissed the case for lack of prosecution. Plaintiff filed a motion to set aside the dismissal under Rule 1.540(b), Florida Rules of Civil Procedure, 12 months and 10 days after the dismissal was entered. In support of the motion, Plaintiff [*2] offered sworn proof that it never received the trial court's notice of lack of prosecution hearing nor the order dismissing the case. The trial court denied the motion as untimely filed more than one year after the dismissal. On appeal, Plaintiff argues that because the order of dismissal was void, its motion to set aside the dismissal was not untimely under the rule. We agree and reverse.

We review an order denying motion to set aside dismissal for abuse of discretion. Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d DCA 1988). Under Rule 1.540(b), a party must file a motion to set aside a judgment or dismissal within a reasonable time not to exceed one year. However, the one-year time limitation does not apply if the underlying judgment or decree is void.

An order entered without notice to the parties deprives the parties of procedural due process and is therefore void. State, Dept. of Revenue ex rel. Johnson v. Haughton, 188 So. 3d 32 (Fla. 3d DCA 2016); Lamoise Group, LLC v. Edgewater S. Beach Condo. Ass'n, Inc., 278 So. 3d 796, 799 (Fla. 3d DCA 2019).

An order dismissing an action for lack of prosecution rendered without service to the Plaintiff is likewise void. Courtney v. Catalina, Ltd., 130 So. 3d 739 (Fla. 3d DCA 2014). Plaintiff offered sworn proof and argued that it never received notice of the hearing on lack of prosecution. Because it was unaware of the hearing, Plaintiff claims that it could not avail itself of the 60-day safe harbor period in which to act. Id. at 739. [*3] Had Plaintiff merely claimed that it received notice of the hearing but never received the final order of dismissal, the order of dismissal would not be void and would be subject to the one-year limitation. See Renovaship, Inc. v. Quatremain, 208 So. 3d 280 (Fla. 3d DCA 2016) (order of dismissal subject to one-year limitation on motion to set aside dismissal where plaintiff served with notice of lack of prosecution hearing but never received the order). Because Plaintiff here never received notice of the hearing, the order of dismissal was void. It was therefore an abuse of discretion to deny the motion to set it aside and we therefore reverse.

Plaintiff argues that its proof of lack of service was undisputed. However, it appears the order denying relief was based solely upon the time-bar and not on whether the notice of hearing was, in fact, served by the Clerk. There was no evidentiary hearing below to resolve the lack of service issue. But it appears from the record that counsel for the Plaintiff moved offices at some point between the hearing for lack of prosecution and the filing of the motion to set aside the dismissal.

The record reflects that the clerk mailed the FWOP notice on March 29, 2017 to Plaintiff's counsel at: Yulexy Solis Garcia at 1000 NW 57th Court, Suite 400, Miami, Florida 33126-3292. This is the same address set forth in Plaintiff's May 4, 2015 first amended complaint signed by Ms. Solis Garcia. Yet in her June [*4] 11, 2018 motion to set aside the dismissal, Ms. Solis Garcia's address is 815 NW 57th Avenue, Suite 401, Miami, Florida 33126. There is no indication in the docket that Plaintiff's counsel updated the clerk of court with a change of address, before the clerk mailed the FWOP notice.

On remand, the trial court should conduct a "limited evidentiary hearing" to determine whether plaintiff received notice. "[W]hen the facts concerning the receipt of the notice of the opportunity to be heard are disputed, the determination of whether an order is void can be resolved only after an evidentiary hearing." Purdue v. R.J. Reynolds Tobacco Co., 259 So. 3d 918, 922 (Fla. 2d DCA 2018).

N 1 Finally, we reject Purdue's assertions in this appeal that she is entitled to have this court simply vacate the order of dismissal because her evidence of nonreceipt is unrefuted. Here, there is a docket entry that states that the clerk of court mailed the notice of the lack of prosecution to "all parties," and the clerk is presumed to have properly discharged his duties. See Wells v. Thomas, 78 So. 2d 378, 384 (Fla. 1954) ("We must presume that the Clerk performed his statutory duty, which was to mail the notice and certify thereto, or else certify that he had no addresses of record of the persons entitled to notice; and we think it is just as reasonable to infer that the notice to the appellee Hyslop was, in fact, mailed to him (as in the case of the other tax deed holder, Savage) and that the record thereof became misplaced, as it is to infer that the Clerk completely ignored his statutory duty. To do otherwise under the particular circumstances here present would amount to an imputation of fraud against the Clerk-and this we will not do in the absence of more compelling evidence."); Long v. Sphaler, 89 Fla. 499, 105 So. 101, 104 (1925) (same). Therefore, Purdue must present evidence to rebut the presumption that the clerk properly discharged his duties as documented in the docket. Purdue v. R.J. Reynolds Tobacco Co., 259 So. 3d 918, 923 (Fla. 2d DCA 2018) [*5] We therefore reverse and remand with directions to conduct a limited evidentiary hearing to determine whether the Plaintiff was served with notice of the lack of prosecution hearing. If Plaintiff was not served, the dismissal should be set aside and the case allowed to proceed.

REBULL and TRAWICK, JJ. CONCUR

COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY