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Kanecke v. Lennar Homes, Inc.

District Court of Appeal of Florida, Third District
Jun 16, 1989
543 So. 2d 784 (Fla. Dist. Ct. App. 1989)

Summary

holding that when the trial court failed to provide notice of entry of a final judgment to the parties until after the time for filing a notice of appeal expired, the trial court was “obligated” to grant relief under rule 1.540(b)

Summary of this case from Leichester Trust v. Fed. Nat'l Mortg. Ass'n

Opinion

No. 88-2313.

April 11, 1989. Rehearing Denied June 16, 1989.

An Appeal from a non-final order from the Circuit Court for Dade County; Mary Ann MacKenzie, Judge.

Freshman, Freshman Traitz, Hershoff, Levy Swartz and Jay M. Levy, Miami, for appellant.

Lanza, O'Connor, Armstrong, Sinclair Tunstall and Edward J. Serer, Coral Gables, for appellee.

Before NESBITT, BASKIN and COPE, JJ.


We have for review an order denying a motion for relief from judgment pursuant to Rule 1.540(b), Florida Rules of Civil Procedure. We reverse.

The trial court entered summary judgment against appellant. It is undisputed that appellant received no notice of the entry of the summary judgment for over thirty days after its rendition. The time for appeal had therefore expired prior to appellant being aware that judgment had been entered. Appellant moved for relief from judgment under Rule 1.540(b), requesting that the trial court vacate the order and reenter it, so as to re-start the time for appeal. The trial court denied the motion without a statement of reasons. This appeal is from the denial of the Rule 1.540 motion.

Where, as here, the uncontroverted facts showed that appellant did not receive notice, the trial court was obligated to grant relief from the judgment as a matter of law. Falkner v. Amerifirst Fed. Sav. Loan Ass'n, 489 So.2d 758, 759 (Fla. 3d DCA 1986); accord Southeastern Fidelity Ins. Co. v. Truck Ins. Exch., 521 So.2d 306 (Fla. 3d DCA 1988); Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980); Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971); see also Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla. 1979).

Reversed.


Summaries of

Kanecke v. Lennar Homes, Inc.

District Court of Appeal of Florida, Third District
Jun 16, 1989
543 So. 2d 784 (Fla. Dist. Ct. App. 1989)

holding that when the trial court failed to provide notice of entry of a final judgment to the parties until after the time for filing a notice of appeal expired, the trial court was “obligated” to grant relief under rule 1.540(b)

Summary of this case from Leichester Trust v. Fed. Nat'l Mortg. Ass'n

holding where appellant did not receive notice of entry of order until after time for appeal expired, trial court as matter of law must grant rule 1.540(b) relief request to vacate and reenter it to restart time for appeal

Summary of this case from Paul v. Wells Fargo Bank, N.A.
Case details for

Kanecke v. Lennar Homes, Inc.

Case Details

Full title:JOHN KANECKE, APPELLANT, v. LENNAR HOMES, INC., APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: Jun 16, 1989

Citations

543 So. 2d 784 (Fla. Dist. Ct. App. 1989)

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