KESNER TOULOUTE, APPELLANT,
v.
CITY OF FORT LAUDERDALE, APPELLEE
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A dismissal order is void and must be vacated when a party fails to receive notice of a status conference due to mailing to an incorrect address, violating due process.
A judgment dismissing a case is void and must be vacated when the defendant did not receive notice of the status conference due to the notice being mailed to the wrong address.
[1] A judgment is void and subject to relief under Rule 1.540(b)(4) when notice of a hearing is mailed to an incorrect address, depriving a party of due process.
Previewing 1 of 1 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“A judgment is void if, in the proceedings leading up to the judgment, there is '[a] violation of the due process guarantee of notice and an opportunity to be heard.'”
Court's statement of the legal standard for when a judgment is void under Rule 1.540(b)(4).
Appellant failed to appear at a status conference because he was not properly noticed; the notice was mailed to an incorrect address.…
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Appellant appeals the denial of his motion to vacate the order dismissing his case after he failed to appear at a status conference of which he had no notice. Rule 1.540(b)(4) provides that the court may relieve a party from a void judgment. “A judgment is void if, in the proceedings leading up to the judgment, there is ‘[a] violation of the due process guarantee of notice and an opportunity to be heard.’ ” Shiver v. Wharton, 9 So.3d 687, 690 (Fla. 4th DCA 2009) (quoting Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006)). The record shows that the notice of the status conference was mailed to appellant at the wrong address. Because appellant failed to receive notice of the status conference, he was denied due process and the order of dismissal *1130must be vacated as void. See Watson v. Watson, 583 So.2d 410 (Fla. 4th DCA 1991) (reversing the denial of a motion to set aside a final judgment where the face of the order showed that the trial court did not mail notice to appellant’s correct address); Taylor v. Bowles, 570 So.2d 1093 (Fla. 4th DCA 1990) (finding abuse of discretion in denial of motion for relief from judgment where defendant had no notice of the trial date).
Reversed.
GROSS, CIKLIN and LEVINE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wells Fargo Bank, N.A. v. Michaels, 166 So. 3d 226 (Fla. 5th DCA 2015)…758, 759 (Fla. 3d DCA 1986) (“Where the uncontroverted facts showed that the Falkners did not receive notice, the trial court was obligated to grant relief from the judgment as a matter of law.”); see also Touloute v. City of Fort Lauderdale, [*228] 80 So. 3d 1129, 1129 (Fla. 4th DCA 2012) (holding that party was denied due process when party failed to receive notice of status conference); Watson v. Watson, 583 So. 2d 410, 411 (Fla. 4th DCA 1991) (holding where face of order setting trial shows that trial cou…
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Mousie Salim v. Flynn (15th Cir. Ct. App. Div. 2010)…entiary hearing on the same. Failure to receive notice of a proceeding may result in a void judgment which may be vacated pursuant to Rule 1.540(b)(4). Colon v. Colon, 45 So. 3d 553 (Fla. 4th DCA 2010); see also Touloute v. City of Fort Lauderdale, 80 So. 3d 1129 (Fla. 4th DCA 2012). The Fourth District Court of Appeal has held that a party alleging a judgment is void for failure to receive notice is entitled to an evidentiary hearing. See Schuman v. Int'l Consumer Corp., 50 So. 3d 75, 77 (Fla. 4th DCA 2010)…
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Allen v. Habitat II Condo., Inc., 267 So. 3d 440 (Fla. 4th DCA 2019)
Authorities Cited
- Terrie G. Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090 (Fla. 4th DCA 2006)
- Shiver v. Wharton, 9 So. 3d 687 (Fla. 4th DCA 2009)
- Taylor v. Bowles, 570 So. 2d 1093 (Fla. 4th DCA 1990)
- Cintron v. State, 583 So. 2d 410 (Fla. 4th DCA 1991)
- Watson v. Watson, 583 So. 2d 410 (Fla. 4th DCA 1991)