LORENZO A. ALLEN v. HABITAT II CONDOMINIUM, INC. , 267 So. 3d 440 ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LORENZO A. ALLEN,
Appellant,
v.
HABITAT II CONDOMINIUM, INC., a Florida not-for-profit corporation,
Appellee.
No. 4D18-1517
[March 27, 2019]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John B. Bowman, Judge; L.T. Case No.
CACE 15-019601 (02).
Lorenzo A. Allen, Parkland, pro se.
Tara N. Mulrey of Katzman Chandler, Fort Lauderdale, for appellee.
PER CURIAM.
Lorenzo A. Allen appeals an order denying in part his Florida Rule of
Civil Procedure 1.540 motion to vacate a foreclosure judgment and to set
aside the sale. He argues the judgment is void because he did not have
notice of the final hearing. He also argues that the trial court erred in
denying his rule 1.540 motion without an evidentiary hearing. We agree
that he is entitled to an evidentiary hearing.
Habitat II Condominium, Inc. (Habitat) filed a complaint against Allen
and other owners of a condominium to foreclose a lien for $3,460 in unpaid
assessments. Allen was served with the complaint by substitute service
on his daughter at his residence. He did not answer. Habitat moved for
default and, later, summary judgment. The motions and the notices of
hearing were mailed to a different address. Allen did not appear at the final
hearing, the trial court entered a foreclosure judgment, and the property
was sold.
Just over a year after the final judgment, Allen filed a verified rule 1.540
motion arguing that his due process rights were violated by mailing the
motions and notices of hearing to the wrong address, which rendered the
judgment void. Without holding an evidentiary hearing, the trial court
denied the motion in part, simply stating that the judgment stands, but a
hearing will be set as to amounts. The order does not include any findings
or any explanation.
On appeal Allen argues that the judgment was void and the court erred
in denying his rule 1.540 motion without an evidentiary hearing. Habitat
did not file an answer brief.
“It is well settled that a judgment entered without notice to a party is
void.” Taylor v. Taylor, 67 So. 3d 359, 362 (Fla. 4th DCA 2011) (quoting
Watson v. Watson, 583 So. 2d 410 (Fla. 4th DCA 1991)); see also Wells
Fargo Bank, N.A. v. Michaels, 166 So. 3d 226, 227 (Fla. 5th DCA 2015);
Touloute v. City of Fort Lauderdale, 80 So. 3d 1129 (Fla. 4th DCA 2012).
Allen’s motion stated a colorable claim of entitlement to relief and
should not have been denied without an evidentiary hearing. See Jones v.
Gov’t Employees Ins. Co., 192 So. 3d 614, 615 (Fla. 4th DCA 2016);
Schuman v. Int’l Consumer Corp., 50 So. 3d 75, 77 (Fla. 4th DCA 2010).
Accordingly, we reverse and remand for an evidentiary hearing on
Allen’s claim that he did not have notice of the final hearing.
Reversed and remanded.
GERBER, C.J., TAYLOR and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2