Third District Court of Appeal
State of Florida
Opinion filed November 1, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-172
Lower Tribunal No. 13-24785
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AIM Recovery Services, Inc.,
Appellant,
vs.
Quincy Williams,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Norma S. Lindsey, Judge.
Stok Folk + Kon, Robert A. Stok, Shoham Segal and Jamey R. Campellone,
for appellant.
Wasson & Associates, Chartered and Annabel C. Majewski, for appellee.
Before LAGOA, EMAS and SCALES, JJ.
EMAS, J.
Appellant, AIM Recovery Services, Inc., appeals a nonfinal order vacating a
default and default final judgment. We review the trial court’s order for a gross
abuse of discretion, Gables Club Marina, LLC v. Gables Condo. & Club Ass’n,
Inc.,
948 So. 2d 21 (Fla. 3d DCA 2006) (citing N. Shore Hosp., Inc. v. Barber,
143
So. 2d 849, 852 (Fla. 1962)), and affirm.
Florida Rule of Civil Procedure 1.500(b) authorizes entry of a default by the
court, but where the party has filed or served any document in the action,1 “that
party must be served with notice of the application for default.” In the instant case,
Williams alleged in his motion to vacate that the default and default final judgment
were void as having been rendered without notice to him or an opportunity to be
heard.2
At an evidentiary hearing on Williams’s motion to vacate, the trial court
weighed the testimony, considered the other evidence presented, and concluded,
inter alia, that Williams did not receive notice of the application for default or
notice of the motion for default final judgment, and did not have an opportunity to
be heard. These determinations are supported by the record.
Because Williams established that he did not receive notice and was not
provided an opportunity to be heard, the default and default final judgment were
1In response to the complaint, Williams filed a motion to dismiss.
2 At the commencement of the action, Williams was represented by counsel;
counsel subsequently withdrew and, at all times relevant to this appeal, Williams
was unrepresented.
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void and properly vacated. As we held in Cellular Warehouse, Inc. v. GH Cellular,
LLC,
957 So. 2d 662 (Fla. 3d DCA 2007) “[a] violation of the due process
guarantee of notice and an opportunity to be heard renders a judgment void.”
“Notice is the first and most essential element of due process and failure to give
notice of a default, when required, makes a default void.” M.W. v. SPCP Group
V, LLC,
163 So. 3d 518, 522 (Fla. 3d DCA 2015). “This court has repeatedly held
that a judgment entered without notice to a party is void ab initio.” State, Dep’t of
Revenue ex rel. Prinzee v. Thurmond,
721 So. 2d 827, 828 (Fla. 3d DCA 1998)
(and cases cited).
Affirmed.
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