SAMUEL OSHANA AND GIANGI RATTO,
v.
CARMELO DESTEFANO LOPIANO, ET AL.,
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The appellate court reversed a trial court's order that denied a motion to set aside a default judgment. The court held that the trial court failed to conduct an evidentiary hearing, which is required when a party presents a colorable claim of excusable neglect or improper service.
Yes, the trial court was required to hold an evidentiary hearing because the appellants presented colorable claims of excusable neglect and improper service, which, if true, would entitle them to relief.
[1] A trial court must hold an evidentiary hearing before ruling on a motion to set aside a default and vacate a final judgment when the moving party presents affidavits rais…
[2] The submission of affidavits and argument of counsel do not constitute an evidentiary hearing.
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“Although we review a trial court’s ruling on motions for relief from judgment for an abuse of discretion, once a party moving under rule 1.540(b) raises a colorable entitlement to relief exercising that discretion requires holding an evidentiary hearing.”
Establishes the legal standard for when an evidentiary hearing is required.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellants sought to set aside a default judgment, arguing excusable neglect by their attorney and improper service on one appellant. They submitted a…
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PER CURIAM.
Samuel Oshana and Giangi Ratto (collectively, “Appellants”) appeal a non-final order denying their verified motion to set aside default and vacate final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). Appellants claim they demonstrated excusable neglect in failing to answer the complaint and that service against Ratto was improper.1 We have jurisdiction. See Fla. R. App. P. 9.130(a)(5).
We conclude the trial court was required to hold an evidentiary hearing prior to making findings on Appellants’ motion. We, therefore, reverse and remand for further proceedings. Following entry of default judgments, Appellants filed a motion to vacate alleging their failure to respond to the complaint was a result of their attorney’s excusable neglect. Ratto further alleged he had never been personally served and the judgment was therefore void. Appellants filed affidavits in support of their motion.2 After an initial hearing on the motion, the trial court requested that Appellants obtain an affidavit from the attorney whose conduct was allegedly excusable. Appellants obtained the attorney’s affidavit and filed it for the trial court’s consideration along with additional supporting affidavits from Appellants.
M. Escarda Contractor, Inc., 69 So. 3d 1097, 1098 (Fla. 3d DCA 2011) (holding that a default judgment awarding unliquidated damages is void if defendant not provided proper notice and an opportunity to be heard).
Although we review a trial court’s ruling on motions for relief from judgment for an abuse of discretion,3 once a party moving under rule 1.540(b) raises a colorable entitlement to relief exercising that discretion requires holding an evidentiary hearing. See Rinconcito Latino Cafeteria, Inc. v. Ocampos, 276 So. 3d 525, 527 (Fla. 3d DCA 2019) (quoting Bayview Loan Servicing, LLC v. Dzidzovic, 249 So. 3d 1265, 1267–68 (Fla. 2d DCA 2018)); see also S.E. Termite & Pest v. Ones, 792 So. 2d 1266, 1268 (Fla. 4th DCA 2001) (“[W]here the contents of an affidavit supporting a defendant’s contention of insufficiency of service would, if true, invalidate the purported service and nullify the court’s personal jurisdiction over the defendant, the trial court should hold an evidentiary hearing before deciding the issue.” (citations omitted)).
While Appellants submitted affidavits and the trial court heard the argument of counsel, the court did not hold an evidentiary hearing on the issues of service of process and excusable neglect prior to making findings and denying Appellants’ motion. See Avi–Isaac v. Wells Fargo Bank, N.A., 59 So. 3d 174, 177 (Fla. 2d DCA 2011) (“[N]either the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing.” (quoting Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA 1991))).
Accordingly, we reverse the order denying Appellants’ motion and “remand for the trial court to hold an evidentiary hearing.” Novastar Mtg., Inc. v. Bucknor, 69 So. 3d 959, 960 (Fla. 2d DCA 2011). “We note that nothing in this opinion should be construed as a determination on the merits of the claims raised in [Appellants’] rule 1.540(b) motion.” Id.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Maruchi Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So. 3d 1097 (Fla. 3d DCA 2011)
- Eyal Avi-Isaac v. Wells Fargo Bank, 59 So. 3d 174 (Fla. 2d DCA 2011)
- Southeastern Termite AND Pest v. Aser Ones and Gladys Ones, 792 So. 2d 1266 (Fla. 4th DCA 2001)
- Saint Luc Jean Noel v. James B. Nutter & Co., 232 So. 3d 1112 (Fla. 3d DCA 2017)
- Burgess v. State, 585 So. 2d 1168 (Fla. 4th DCA 1991)
- Bayview Loan Servicing, LLC v. Huso Dzidzovic, 249 So. 3d 1265 (Fla. 2d DCA 2018)
- Novastar Mortg., Inc. v. Shedrick Arbonnetta Bucknor, 69 So. 3d 959 (Fla. 2d DCA 2011)