vs.                                                                                                         Appeal No.00-3495-CI-88A




Opinion filed ________________________

Appeals from Final Judgment

Pinellas County Court

The Honorable Myra Scott McNary

Harry Dunleavy
16 Price Road
Augusta, New Jersey 07822
Appellant, Pro Se

Todd and Deborah Hatfield
2390 14th Ave. South West, Apt. D
Largo, Florida  33770
Appellees, Pro Se


            THIS CAUSE came before the Court on appeal, filed by Harry Dunleavy (“Appellant”), from an Order Dissolving Writ Of Continuing Garnishment and an Order denying the Appellant’s (Plaintiff below) Motion for Award of Attorneys Fees and Costs and Appellees’ (Defendants below) Motion for Relief from Final Judgment, both entered April 28, 2000, by the Pinellas County Court. 

            Upon review of the record, the Court finds the Order Dissolving Writ of Continuing Garnishment is affirmed.  The lower court’s Order denying the Appellant’s Motion for Award of Attorney’s Fees and Costs is affirmed.   However, the lower court erred in denying the Appellee’s Motion for Relief from Final Judgment and, accordingly, that portion of the Order is reversed and remanded as follows.

            The issues raised by the Appellant in the present appeal are whether the lower court erred in dissolving the Writ of Continuing Garnishment and whether the lower court erred in not granting the Appellant’s Motion for Attorney’s Fees and Costs.  Although the Appellees did not specifically file a cross-appeal, in response to the Initial Brief the Appellees re-asserted their position that they were prejudiced by the entry of the award of damages to the Appellant without notice or a hearing.  This Court agrees with the Appellees’ position, and further finds, in reviewing the record, that numerous prejudicial and fundamental errors were committed in the proceedings below.  See Black’s Law Dictionary (defining “fundamental error” as an error so obvious and substantial that failure to correct it would infringe a party’s due-process rights and damages the integrity of the judicial process).  Accordingly, this Court is required to notice and correct these errors, even if not properly raised in this appeal.  See Hasegawa v. Anderson, 742 So.2d 504, 506 (Fla. 2d DCA 1999)(stating that whether an error is fundamental is reviewed as a question of law); see also Security Bank v. Bellsouth Advertising & Publishing Corporation, 679 So.2d 795, 804 (Fla. 3d DCA 1996)(stating that the award of a judgment which has no legal foundation constitutes fundamental error which the court is required to notice and correct)(citations omitted).   In lieu of the extent of the errors of law committed below, this Court sets forth the following factual and legal analysis to provide clarification to the lower court on remand.  (Note that the “lower court” referenced in this Order and Opinion is not specifically referring to the County Court Judge whom entered the aforementioned Orders on April 28, 2000, and who properly dissolved the Writ of Continuing Garnishment).

            At the outset, the record shows that on October 6, 1999, the Appellant, an out-of-state pro se attorney, filed a Complaint for Eviction and Damages.  Although the complaint does not contain a certificate of service, the record shows the Appellees were served with the complaint and a five-day summons, pursuant to section 51.011, Florida Statutes, on the following day.  In accordance with the time for response set forth in section 51.011(1), and in Rule 1.090(a), Florida Rules of Civil Procedure, the Appellee, Deborah Hatfield, represented by counsel, timely filed an Answer with Affirmative Defenses and a Motion to Dismiss.  (It is not clear why only Deborah Hatfield answered the complaint, but the record shows that she alone signed the “Residential Rental Contract” entered into on December 1, 1998 with the Appellant).  The responsive pleadings alleged that the complaint failed to state a cause of action for eviction due to the Appellant’s failure to provide the statutory notice of termination to the Appellees, pursuant to Florida Statutues, sections 83.46(3) and 83.57(3).  This Court notes that the complaint filed by the Appellant did not attach as an exhibit a copy of the statutory notice as required by Rule 1.130, Florida Rules of Civil Procedure.  See Fla. R. Civ. Pro. 1.130(2000); see also Bell v. Kornblatt, 705 So.2d 113, 114 (Fla. 4th DCA 1998)(holding that compliance with the statutory notice requirement is a condition precedent to an eviction action under part II of Charter 83);

Crocker v. Diland Corporation, 593 So.2d 1096, 1100 (Fla. 5th DCA 1992)(stating that section 51.011 puts the burden on the plaintiff to file a complaint that meets the statutory requirements and that states a cause of action).

            Although the Appellee, Deborah Hatfield, had filed a timely response and her Motion to Dismiss was outstanding, the lower court nevertheless incorrectly entered a Default Eviction and Final Judgment for Eviction on October 19, 1999, without notice to either Appellee.  See Fla. R. Civ. Pro. 1.500(2000); see also Eli Witt Cigar & Tobacco Co. v. Somers, 99 Fla. 592, 597 (Fla. 1930)(holding that no default can be entered until motion to dismiss is disposed of); Crocker, 593 So.2d at 1100 (stating that a default is improper if a party who has appeared fails to timely plead, but does plead or otherwise defend before the hearing on motion for default).  The Florida Rules of Civil Procedure, Rule 1.500, specifically provides that when a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, the party shall be served with notice of the application for default.  (emphasis added).

The following Authors Comment explains that “it is the failure to file or serve any paper

in the action that places a party in default by the very language of the rule.”  Clearly, a timely Answer and a Motion to Dismiss had been filed and so, as a matter of law, the Default Eviction should not have been entered.  Further, from the face of the Appellant’s Motion For Court Default, counsel for the Appellee was never served, a violation of not only Rule 1.500(b), Florida Rules of Civil Procedure, but also Rule 1.080(b), which states that “when service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney….”  See also Gould v. Ruzakowski, 322 So.2d 567 (Fla. 3d DCA 1975)(holding that Rule 1.500(b) clearly provides that the party against whom a motion for default judgment has been filed must be served with a notice of the application for default and it was error to for the trial judge to enter an order granting default and final judgment where there was not notice).

Upon receipt of the orders of Default Eviction and Final Judgment For Eviction, both

entered the same day, and pursuant to Rule 1.540(b), Florida Rules of Civil Procedure, the Appellee, Deborah Hatfield, immediately filed, on October 21,1999, an Emergency Motion to Set Aside Final Judgment and Order of Default and Stay of Writ of Possession.  There is no order in the record reflecting that this emergency motion was ever ruled upon, but on October 26, 1999, the lower court entered an Amended Final Judgment For Eviction to add the language, “for which let writ of possession issue forthwith.”  For obvious reasons, including that an Answer had been timely filed, the lower court abused its discretion not setting aside the Default Eviction and Final Judgment For Eviction.  See Allstate  Insurance Company v. Ladner, 740 So.2d 42, 43 (Fla. 1st DCA 1999)(stating that reversal is proper if the trial court abused its discretion; further stating that the longstanding policy in Florida is one of liberality toward vacating defaults, and any reasonable doubt with regard to setting aside a default should be resolved in favor of vacating the default and allowing a trial on the merits)(citations omitted); see also Nasrallah v. Smith, 538 So.2d 554, 555 (Fla. 5th DCA 1989)(finding that a default should be set aside where the party against whom the default was entered demonstrates that service of a responsive pleading had been completed either on or before the day when the default was entered); Fla. R. Civ. Pro. 1.540(b)(2000).  The record shows the Appellees were then evicted from their apartment by the Pinellas County’s Sheriff’s Office on October 28, 1999.

            The Florida Rules of Civil Procedure, Rule 1.500(d) explicitly authorizes the court to set aside a final judgment in accordance with Rule 1.540(b), Relief from Judgment, Decrees, or Orders.   This Rule states, in relevant part, that

On Motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; …(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void… .  The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.

            The following Author’s Comment further explains that the application of the relief provisions are generally within the discretion of the court, but if a judgment or decree is void as a matter of law, no discretion would exist but to give the proper relief.  As a matter of law, the lower court had no discretion but to grant the Appellee’s Emergency To Set Aside Final Judgment and Order of Default and Stay Writ of Possession.  In not doing so, the lower court violated a clearly established principle of law resulting in a miscarriage of justice.  See Combs v. State, 436 So.2d 93, 96 (Fla. 1983).  In evicting the Appellees in the manner it did, the lower court denied the Appellees the minimal procedural due process requirements of notice and hearing guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and further guaranteed by Article I of the Florida Constitution.  See U.S. v. White, 429 F.Supp. 1245, 1250 (N.D. Miss. 1977); see also Art. I, §§ 9, 21 Fla. Const. (stating that no person shall be deprived of life, liberty, or property without due process of law and the courts shall be open to every person for redress of any injury).

            Thereafter, the aforementioned prejudicial errors lead to the further entry of erroneous orders.  On November 4, 1999, the Appellant filed a Complaint For Eviction And Damages Count II and Affidavit of Damages; the Appellant had not received leave of court or written consent of the Appellees to amend his original complaint, as set forth in Rule 1.190(a), Florida Rules of Civil Procedure.  This second unauthorized Complaint was mailed to Appellee’s counsel the following day and received on November 8, 1999.  That same day, without any notice to the Appellees and no hearing on the matter, the lower court entered a Final Judgment Count II Damages against both Todd and Deborah Hatfield awarding the Appellant damages in the amount of $5,371.39, with 10% annual interest.  For numerous reasons, this order was incorrectly entered and again denied the Appellees due process.  See Security Bank, 679 So.2d at 795 (holding that notice was an issue of fundamental error); see also L.B.T. Corp. v. Camacho, 429 So.2d 88, 89 (Fla. 5th DCA 1983)(holding that the trial judge erred in awarding damages based solely on an affidavit, without notice and hearing); Berwick v. Kleinginna Investment Corp., 143 So.2d 684, 689 (Fla. 3d DCA 1962)(citing Florida Ventilated Awning Co. v. Dickson, 67 So.2d 215 (Fla. 1953)(stating that it is well established that before damages may be awarded, there must be evidence authorizing or justifying the award of a definite amount); Fla. R. Civ. Pro. 1.090(d)(stating that a copy of any motion which may not be heard ex parte and a copy of the notice of hearing thereof shall be served a reasonable time before the time specified for the hearing).  Additionally, the Appellees had denied the Appellant’s claim for damages in response to his first complaint, so that the issue of damages was not uncontested.

            The record shows that on November 18, 1999, the Appellee again filed a Motion For Relief From Judgment.  Before this Motion came before the court, the Appellant filed an unauthorized Motion For Continuing Writ Of Garnishment on December 1, 1999.  The very next day, on December 2, 1999, while the Motion For Relief was outstanding and without notice to the Appellant, the lower court entered an order for Continuing Writ Of Garnishment For Salary Or Wages, which was served on the Appellee’s employer.  Even if the award for damages had been predicated on a lawfully entered award of damages, the entry of the Continuing Writ of Garnishment was nonetheless prohibited by statutory and case law. See Noland Company v. Linning, 132 So.2d 802, 803 (Fla.1st DCA 1961)(stating that the clear wording of the statute imposes a mandatory duty on the courts to refrain from issuing writs of garnishment unless it is first made to appear by sworn averments of the judgment creditor that the money to be garnished is not due for the personal labor or services to the head of a family);  see also Florida Statutes § 222.11(1999)(stating that a “head of family,” who is one providing more than one-half of the support for a child or other dependent, falls under the exemption of wages from garnishment). Additionally, the Appellant’s Motion For Continuing Writ of Garnishment and subsequent Order thereon, contains no certificate of service to the Appellees, (invalidating the 20-day response provision of § 77.07(2), Florida Statutes), and does not otherwise comply with the law.  See id.  (The “Notice To Defendant...” attached to Appellant’s Initial Brief, dated December 28, 1999, was not filed with the Court and is not a part of the record below).

            After having her wages unlawfully garnished for two months, the Appellees filed a second Motion for Relief from Judgment as to the Count II damages.  (The Appellees, at this point were proceeding pro se and, in all likelihood, erroneously believed they needed to file another motion for relief, although they could have set the November 18, 1999, Motion For Relief For Judgment, as it had not yet come before the court.  Nevertheless, both motions were timely under Rule 1.540(b), Florida Rules of Civil Procedure as stated above).  The Appellant’s assertion that he did not receive this latest Motion for Relief from the Appellees lacks merit.  The Motion contains the appropriate certificate of service and, furthermore, the Appellant filed a Motion To Deny Respondent’s Relief almost two weeks before the hearing.  Thereafter, upon the noticed hearing during which both parties testified, the lower court entered an order denying the Appellees Motion for Relief from Judgment and dissolved the Writ of Garnishment.

            This Court finds that in lieu of the serious and repeated due process violations in the proceedings below (which may have been exacerbated by the fact that the underlying cause of action came before five County Court Judges, in one form or another, in less than seven months), the lower court abused its discretion in not granting the Appellees’ Motion for Relief from Judgment and the Appellees should be afforded prompt reprieve.  See Allstate, 740 So.2d at 43.  Furthermore, the lower court committed fundamental errors in entering the Amended Final Judgment for Eviction, the Final Judgment Count II Damages, and the Continuing Writ of Garnishment, that this Court is required to correct.  See Security Bank, 679 So. 2d at 804 (stating that where the plaintiff has recovered upon a nonexistent right, the judgment constitutes fundamental error which the appellate court is required to notice and correct); see also Eli Witt Cigar, 99 Fla. at 592 (finding that orders, decrees, or judgments made through mistake may be vacated or modified at any time upon proper showing).  Therefore, because the Appellee’s wages were wrongfully taken due to prejudicial and harmful errors committed by the lower court, this Court finds that the Appellee, Deborah Hatfield, is entitled to an immediate return of her garnished wages, including any garnished interest thereon, together with 10% interest, from the date of the first garnishment.  As the record is not clear of what the exact figure is, the only issue for the lower court to determine on remand is the amount of garnished wages, with interest, immediately due the Appellee (the record reflects that only Deborah Hatfield’s wages were garnished).  The parties may stipulate as to what this figure is, which should be readily ascertainable from employment or related bank records.  Upon determining the total amount of reimbursement due the Appellee, including interest thereon, the lower court shall enter an order of Final Judgment accordingly.  

            As to the Appellant’s contention the lower court erred in not awarded him attorney’s fees, as an attorney representing himself pro se, this Court finds no error in this ruling.  The prevailing view of law in this area is unfavorable to the award of attorney’s fees to attorneys acting pro se, and further leaves this issue to the discretion of the court.  See American Reliance Insurance Co. v. Nuell, Baron & Polsky, 654 So.2d 289, 290 (Fla. 3d DCA 1995)(citing Kay v. Ehrler, 499 U.S. 432 (1991)(stating that a rule that authorizes awards of counsel fees to pro se litigants would create a disincentive to employ counsel whenever such a plaintiff considered himself competent to litigate on his own behalf; the statutory policy of furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case); see also Elliot v. Pallotti, 654 So.2d 1300, 1302 (Fla. 5th DCA 1995)(ruling that the determination of attorney’s fees is within the sound discretion of the trial court).  The record also shows that the Appellant did not plead attorney’s fees.  See Stockman v. Downs, 573 So.2d 835, 837 (Fla. 1991)(finding that a claim for attorney’s fees, whether based on statute or contract, must be pled).  Additionally, and as a final point, this Court would remind the Appellant, especially as an attorney who asserts he has “successfully” obtained writs of garnishment on four previous occasions, to abide by the statutory and case law of this State.  See Carr v. Grace, 321 So.2d 618, 618 (Fla. 3d DCA 1975)(holding that Appellant’s self-representation did not relieve her of the obligation to comply with any appropriate rules of the court and rules of civil procedure); see also Fla. Stat. §454.18(2000)(stating that “any person…

may conduct his or her own cause in any court of this state…subject to the lawful rules and discipline of such court…”).

            It is therefore,

            ORDERED AND ADJUDGED that the Order Dissolving Writ of Continuing Garnishment, entered April 28, 2000, is affirmed.  It if further

            ORDERED AND ADJUDGED that the Order, entered April 28, 2000, denying Appellant’s Motion for Award of Attorneys Fees and Costs is affirmed.  It is further

            ORDERED AND ADJUDGED that the same Order, entered April 28, 2000, denying Appellee’s Motion for Relief from Final Judgment is reversed and remanded.  The Final Judgment Count II Damages, entered November 8, 1999, is vacated.  On remand, the lower court shall enter an order of Final Judgment consistent with this Order and Opinion.  The order shall require the Appellant to reimburse to the Appellee, Deborah Hatfield, her garnished wages, including any garnished interest thereon, together with 10% interest.  The order of Final Judgment shall reflect this total amount of reimbursement due the Appellee and shall be entered on an expedited basis, as is feasible. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 3rd day of October 2000.


Circuit Judge, Appellate Division


Copies Furnished To:

The Honorable Myra Scott McNary

The Honorable Henry J. Andringa

Harry Dunleavy
16 Price Road
Augusta, New Jersey 07822
Appellant, Pro Se

Todd and Deborah Hatfield
2390 14th Ave. South West, Apt. D
Largo, Florida 33770
Appellees, Pro Se

Garry R. Moore, Esquire
314 S. Missouri Ave., Suite 109
Clearwater, FL  33756

Staff Attorney, Appellate Division