County Civil Court: CIVIL PROCEDURE – Service of Process – even without a transcript, record shows trial court erred in denying appellant’s relief from judgment – it is undisputed that appellant was not noticed with appellee’s motions or notices of hearing – judgment entered without proper notice is void - Final Judgment reversed.  Dodd v. Midland Credit Management, Inc., No. 03-5040AP-88B (Fla. 6th Cir. App. Ct. July 14, 2004). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

LAURIN-KIRKPATRICK: DODD,

                                                Appellant,

vs.                                                                                        Appeal No. 03-5040AP-88B

                                                                                            UCN522003AP005040XXXCV

 

MIDLAND CREDIT MANAGEMENT, INC.

                                                Appellee.

_________________________________________/

 

Opinion Filed___________________

 

Appeal from Final Summary Judgment

Pinellas County Court

County Judge Myra McNary

County Judge William Blackwood

 

Laurin-Kirkpatrick: Dodd, Pro Se

 

Robert J. Orovitz, Esquire

Attorney for Appellee

 

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Laurin-Kirkpatrick: Dodd (Dodd), from the Final Summary Judgment, entered July 22, 2003, in favor of Midland Credit Management, Inc. (Midland), and the Order Denying Defendant’s Motion for Relief from Judgment, entered December 3, 2003. [1]   Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

            Initially, the Court finds that Midland did not file an Answer Brief, even though its Motion for Extension of Time, filed January 20, 2004, was granted and its Motion to Dismiss, filed on February 24, 2004, by counsel for Midland on behalf of both Midland and Chase Manhattan Bank U.S.A, National Association (Chase), was denied.  Chase, never recognized as a party in the proceedings below, [2] filed an Answer Brief.  However, this Court, not having the benefit of the prepared appellate record and with no objection filed by Chase to Dodd’s Notice of Appeal, added Chase as an Appellee in entering its orders. [3]   Therefore, although Chase is not a proper party to these appellate proceedings, the Court reviewed the argument raised in its Answer Brief in addressing the merits of this appeal.   

            The underlying facts are that Midland filed its Complaint for Damages, on March 10, 2003, against Dodd seeking to recover the principal balance of $8,832.34, owed pursuant to the parties’ Credit Agreement, together with interest, court costs, and attorney’s fees.  The Complaint was served on Dodd at his place of employment.  Dodd timely responded with a “Cross-Bill” which asserted various affirmative defenses, directed to both Midland and Chase, and listed Chase as a respondent in the case style.  Although the Cross-Bill does not contain a certificate of service, nor an address for Dodd, Midland responded with several motions, filed between April 18, 2003, through May 19, 2003, to wit: Motion to Dismiss Pleadings Entitled Cross Bill, Motion for Default, Motion for Default Final Judgment, [4] and Motion for Summary Judgment.  As evidenced by the certificates of service, these motions were served upon Dodd at 401 Broadway, Dunedin, Florida, 34698.  On April 28, 2003, Chase filed a Notice of Appearance, followed by a Verified Motion to Dismiss Cross-Bill, et. al., filed May 5, 2003. [5]  

On May 20, 2003, the trial court entered an Order granting Midland’s Motion to Dismiss Pleadings Entitled Cross-Bill and entered its Final Summary Judgment in favor of Midland on July 22, 2003; both orders were sent by the trial court to Dodd, via U.S. mail, to the 401 Broadway address.  Thereafter, Dodd timely filed a Notice of Appeal on August 19, 2003.  On November 10, 2003, this Court relinquished jurisdiction for a period of sixty days so that the trial court could consider Dodd’s Motion for Relief from Judgment.  After a hearing on December 2, 2003, the trial court entered its Order Denying Defendant’s Motion for Relief from Judgment. [6]

            The sole issue raised on appeal is whether Dodd was denied due process of law by Midland’s failure to provide proper notice of the motions and hearings which resulted in the dismissal of Dodd’s “permissive third-party counter-claim for affirmative relief.”  Even with a lack of transcripts from the proceedings below, it is clear that the trial court erred in denying Dodd’s Motion for Relief from Judgment, filed pursuant to the Florida Rules of Civil Procedure, Rule 1.540.  Indeed, the standard applicable to setting aside a final judgment pursuant to Rule 1.540, i.e. excusable neglect, does not even apply under the facts of this case where it is undisputed that Dodd was not properly noticed with Midland’s motions or notices of hearing.  See e.g. Niki Unlimited, Inc. v. Legal Services of Greater Miami, 483 So.2d 46, 48 (Fla. 3d DCA 1986)(explaining that had the Appellant not been properly served with the notice of hearing, the final judgment would be subject to attack, not based on excusable neglect under Fla. R. Civ. P. Rule 1.540(b), but on the ground that the judgment was void for failure to provide notice and an opportunity to be heard).

As stated above, following service of its Complaint at Dodd’s place of employment, Midland served all other papers on Dodd at the 401 Broadway address.  Likewise, the orders entered by the trial court were sent to the 401 Broadway address.  As provided for in Dodd’s Motion and the attached affidavits, to which Midland did not respond, Dodd resides at this address but does not receive mail there.  Indeed, the record shows that Dodd had no knowledge of the Final Summary Judgment until Midland mailed a copy to Dodd’s place of employment, the same place upon which Dodd was served with the Complaint.  Although it is a party’s responsibility to keep the trial court and an opposing party apprised of his/her whereabouts for the purpose of service of papers, there was no basis for Dodd to provide a different mailing address given the service of the Complaint at his place of employment.

Accordingly, the Court finds that the Order granting Midland’s Motion to Dismiss and the Final Summary Judgment are void as they were entered without proper notice.  See id.; see also Intercontinental Properties, Inc. v. U.S. Security Services, Inc., 515 So.2d 321, 322 (Fla. 3d DCA 1987)(stating that an order or judgment entered without proper notice is void); O’Brien v. Florida Birth-Related Neurological Injury  Compensation Assoc., 710 So.2d 51, 52 (Fla. 4th DCA 1998)(same); Zerrillo v. Snapper Power Equipment, 562 So.2d 819, 820 (Fla. 4th DCA 1990)(providing that the constitutional guarantee of due process  requires the opportunity to be heard be full and fair).  In remanding this matter, the Court observes that Dodd’s Cross-Bill manifested an intent to defend on the merits of the case.  Thus, the Court finds that Dodd should be given an opportunity to amend his answer so that the case can be decided on its merits.  See e.g. Dimick v. Ray, 774 So.2d 830, 833 (Fla. 4th DCA 2000)(stating that public policy favors liberality in permitting amendments to pleadings so that the resolution of the disputes will be on their merits); Barrett v. City of Margate, 743 So.2d 1160, 1162 (Fla. 4th DCA 1999)(finding that dismissing an action with prejudice due to defective pleading is not proper unless the plaintiff has been given an opportunity to amend);  compare with Motor Sport Engineering, Inc. v. Car Point, Inc., 611 So.2d 15 (Fla. 3d DCA 1992)(finding pro se answer manifesting intent to defend on the merits precluded entry of default judgment against individual defendants).  That is not to say Dodd can proceed with disregard for the rules of procedure; although the trial court should allow Dodd some procedural latitude as a pro se litigant, the trial court cannot assist Dodd “to the detriment of the opposing party or to the point that the impartiality of the tribunal can be called into question.”  See Barret, 743 So.2d at 1162.

Lastly, on remand the Court finds that Midland cannot simply appear by phone by stating in its Notice of Hearing, “Plaintiff will appear by phone.”  Rather, Midland must file a written request with reasonable notice to all other parties, pursuant to the Florida Judicial Administration Rules, Rule 2.071(c), which must be granted by the trial court, in its discretion, before Midland can appear by phone.  See Fla. R. Jud. Admin. Rule 2.071(c).  If the hearing is not set for longer than 15 minutes, the trial court must grant the request to appear by phone absent a showing of good cause to deny the same.  See id.          

 

 

 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Final Summary Judgment is reversed and this cause is remanded for action consistent with this Order and Opinion.

            DONE AND ORDERED in chambers, at St. Petersburg, Pinellas County, Florida this ______ of July 2004.

                       

 

                                                                                    ________________________

                                                                                    DAVID A. DEMERS

                                                                                    Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

Judge Myra S. McNary

Judge William Blackwood

 

Laurin-Kirkpatrick: Dodd

5325 140th Avenue North

Clearwater, Florida 33760

 

Robert J. Orovitz, Esquire

7765 S.W. 87th Avenue, Suite 101

Miami, FL  33173

 

Anthony J. Petrillo, Esquire

Scott E. Zimmer, Esquire

501 E. Kennedy Blvd., Suite 720

Tampa, Florida 33602

 

[1] The Court relinquished jurisdiction to the trial court for the entry of this order.

[2] None of the trial court’s orders made any findings with regard to Chase; neither Chase nor Dodd filed the proper motion to intervene/interplead Chase in conjunction with Dodd’s asserted permissive counterclaim.  The Court notes that it is undisputed that Chase assigned the underlying credit card account to Midland in July 2002. 

[3] This error was corrected in this Order and Opinion.

[4] The clerk denied the Motion for Default citing that “[a]n Answer has been filed on March 31, 2003”; the Motion for Default Final Judgment never came before the trial court. 

[5] These were mailed to and received by Dodd at P.O. Box 17134, Clearwater.

[6] Judge Blackwood heard and ruled on this motion, whereas Judge McNary entered the previous orders. There is no merit to Dodd’s argument that this Order was entered January 16, 2004, beyond the 60-day jurisdictional limit.