GIGI CRUZ v. THE VINYARDS OF PLANTATION CONDO. ETC.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GIGI CRUZ,
Appellant,
v.
THE VINEYARDS OF PLANTATION, CONDOMINIUM ASSOCIATION,
INC., a Florida not-for-profit corporation,
Appellee.
No. 4D17-366
[August 23, 2017]
Appeal of non-final orders from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Barbara McCarthy, Judge; L.T. Case No.
CACE-16-000625.
Bruce Botsford of Bruce Botsford, P.A., Fort Lauderdale, for appellant.
Ilian Rashtanov of The Rashtanov Law Firm, P.L., Fort Lauderdale, for
appellee.
PER CURIAM.
The trial court denied appellant’s motion to vacate a final summary
judgment that foreclosed a condominium lien. We exercise de novo review
and reverse because appellant was denied proper service of the notice of
the final hearing. Vercosa v. Fields, 174 So. 3d 550, 552 (Fla. 4th DCA
2015). Appellee did not give the pro se appellant notice and an opportunity
to be heard at the summary judgment hearing because it did not serve the
notice of hearing by e-mail and physical mail as required by a prior court
order.
A previous order granting appellant’s counsel’s motion to withdraw
provided that all papers or other filings were to be served on appellant at
a stated physical mailing address and an e-mail address. This dual service
was to accommodate appellant’s work-related travel requirements. The
trial court also stayed the case to allow appellant time to obtain new
counsel.
Appellant did not retain new counsel and about a month after the stay
expired, appellee served appellant with a notice of hearing on the motion
for summary judgment by regular and certified mail. Appellee did not
serve the notice by e-mail as required by the withdrawal order.
Appellant did not appear at the hearing and the trial court entered the
final summary judgment. About a month later appellant moved to set the
judgment aside, noting that she was not served by email, that she was out
of town when the notice was mailed, and that she did not return until after
the hearing. There was no dispute that the certified mailing was returned
as undelivered.
Appellant argued that the final judgment was void for lack of service
and/or that it was entered upon mistake, inadvertence, surprise or
excusable neglect. Fla. R. Civ. P. 1.540. The trial court denied appellant’s
motion, commenting that appellant failed to demonstrate excusable
neglect or a meritorious defense. Neither is required because the judgment
was entered without proper notice, thereby denying appellant due process.
Hendrix v. Dep’t Stores Nat’l Bank, 177 So. 3d 288, 290 (Fla. 4th DCA
2015). Here, appellee failed to comply with the court’s order that required
all papers or other filings to be served on appellant at a stated physical
mailing address and an e-mail address. Thus, we reverse the order
denying the motion to vacate and remand for the trial court to vacate the
final summary judgment.
Reversed and remanded.
WARNER, MAY and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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