# Third District Court of Appeal

State of Florida

Opinion filed April 24, 2019.

Not final until disposition of timely filed motion for rehearing.

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No. 3D17-1613

Lower Tribunal No. 14-28685

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### Jesus Estrada, Sr.

, Appellant,

vs.



### Jesus Estrada, Jr. and Aixa Estrada

,

Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade

County, Norma S. Lindsey

, Judge.

Jennifer A. Kerr; David S. Harris

, for appellant.

Bernhard Law Firm, PLLC and Andrew J. Bernhard

, for appellees.

Before EMAS, C.J., and FERNANDEZ, and MILLER 1

, JJ.

FERNANDEZ, J.

1 Did not participate in oral argument.Appellant Jesus Estrada, Sr. appeals the trial court’s order granting appellees

Jesus Estrada, Jr. and his wife, Aixa Estrada’s, Motion to Set Aside Void Default

and Default Judgment. We agree with appellant that the trial court erred in

vacating the default and default judgment, as the judgment in question was not

void or voidable. In addition, appellees’ Motion to Set Aside Void Default and

Default Judgment was legally insufficient, as it was untimely and unverified. We

thus reverse the trial court’s order granting appellees’ Motion to Set Aside Void

Default and Default Judgment and remand for the trial court to reinstate the Order

of Default and Final Default Judgment.

Appellant filed a complaint against appellees for breach of fiduciary duty,

conversion, and unjust enrichment on November 10, 2014. Appellant, father to

appellee Estrada, Jr., claimed he allowed appellees to manage three rental

apartment buildings appellant owned in Florida. Appellees, who are residents of

Texas, then allegedly induced appellant to sell the properties and converted the

proceeds of the sale, totaling $2.2 million, to buy seven properties in Texas in

appellees’ names. Appellant alleged appellees gave appellant seven sham quitclaim deeds purporting to list appellant as the owner of the properties. Thereafter,

appellant found out from his other adult son that appellant was not the owner of the

properties.

2On January 30, 2015, each of the appellees was served with process at their

home at 15720 East Davis Road, Edinburg, Hidalgo County, Texas. This is

undisputed in the record, and the appellees have not alleged lack of service. Each

summons served on each appellee instructed them as follows:

Each defendant is required to serve written defenses to the complaint or

petition on Plaintiff’s attorney: David S. Harris, Esq., whose address is: 6431 SW

39 Street, Miami, FL 33155 within 20 days after service of this summons on that

defendant, exclusive of the day of service, and to file the original of the defenses

with the Clerk of this Court either before service on Plaintiff’s attorney or

immediately thereafter. If a defendant fails to do so, a default will be entered

against that defendant for the relief demanded in the complaint or petition.

This language contained in the summons meets Florida’s service requirements for

litigants, which also includes pro se parties. In addition, Florida Rule of Judicial

Administration 2.516 governs the service of pleadings and documents in Florida.

Rule 2.516(b)(2), which deals with parties not represented by an attorney,

provides:

Service on and by all parties who are not represented by an attorney

and who do not designate an e-mail address, and on and by all

attorneys excused from e-mail service, must be made by delivering a

copy of the document or by mailing it to the party or attorney at their

last known address or, if no address is known, by leaving it with the

clerk of the court. Service by mail is complete upon mailing. Delivery

of a copy within this rule is complete upon:

(A) handing it to the attorney or the party,

(B) leaving it at the attorney’s or party’s office with a clerk or other

person in charge thereof,

(C) if there is no one in charge, leaving it in a conspicuous place

therein,

3(D) if the office is closed or the person to be served has no office,

leaving it at the person’s usual place of abode with some person

of his or her family above 15 years of age and informing such

person of the contents, or

(E) transmitting it by facsimile to the attorney’s or party’s office

with a cover sheet containing the sender’s name, firm, address,

telephone number, and facsimile number, and the number of

pages transmitted. When service is made by facsimile, a copy

must also be served by any other method permitted by this rule.

Facsimile service occurs when transmission is complete.

(F) Service by delivery after 5:00 p.m. must be deemed to have

been made by mailing on the date of delivery.

It is undisputed that appellees did not serve appellant’s attorney with any paper or

answer to the complaint.

Thereafter, appellant filed a motion for default and default for each appellee.

These motions were served on appellees at their home address in Texas, the same

home address where each appellee was served with process. Appellees never filed

any response to the motions for default and default.

On May 14, 2015, the Miami-Dade Clerk of Courts issued a Notice of

Default Not Entered. This notice stated that the reason the clerk was not authorized

to enter the default was because the summons were served on out of state

defendants. The notice instructed appellant to move for default, which the

appellant did that same day. In addition, the notice does not indicate that an

answer or other paper was filed by defendants/appellees.

On June 22, 2015, appellees were then served with a Notice of Hearing on

appellant’s motion for default judgment, which was set for July 21, 2015. At that

4hearing, the trial court entered an Order of Default against appellees for failing to

serve or file any paper as required by law. Appellees did not attend the July 21,

2015 hearing. The Order of Default was served on appellees at their Texas home

address.

On August 19, 2015, appellant filed a motion for entry of final judgment and

an affidavit of proof of claim signed by appellant, stating that appellees owed

appellant $2,200,000.00, plus interest and court costs. Appellees never filed any

response to this. A copy of this motion for final judgment, along with a copy of

the complaint, was served on appellees at their Texas home address. The appellees

never filed a response to appellant’s motion.

On April 12, 2016, the trial court entered a default final judgment. It was

served on appellees at their home address in Texas.

Thereafter, on April 28, 2017, counsel for appellees filed a notice of

appearance and filed an unverified motion to set aside void default and default

judgment, under Florida Rule of Civil Procedure 1.540(b). Appellees’ attorney

alleged in the motion that appellees served a response to the complaint on February

16, 2015, claiming that appellant had no damages. The court docket reflects that

an ex-parte letter was mailed to the Miami-Dade County Court. The docket for the

trial court case shows the letter docketed on February 19, 2015. The letter does not

state that it was mailed or delivered to appellant’s attorney and does not include a

5certificate of service to appellant’s attorney. The date, “February 16, 2015” is

typed at the top of the letter, as well as the lower court case number. The Clerk of

Courts of Miami-Dade County’s name is not stamped on the letter. On the right

side of the paper on which the letter is printed, the letter shows an illegible

stamped line that looks to be a date with a time. Each appellee also filed an

affidavit as to lack of service, claiming that from February 16, 2015 to April 17,

2017, they received no filings or documents relating to appellant’s lawsuit and

nothing was served on them at their home in Texas. However, appellees do not

dispute in their affidavits that they were personally served with the summons and

complaint at their home address in Texas, that they failed to serve appellant’s

counsel with a response, and that the summons instructed that they had to serve

appellant’s counsel with their response.

Appellant then filed the Affidavit of David S. Harris, appellant’s trial

attorney, in response to the appellees’ unverified motion to set aside void default

and default judgment and appellees’ affidavits, wherein appellant’s trial attorney

outlined the procedural history of the case, detailed how the summons and

complaint was served on each appellee, and described all the motions and notices

he filed. In his affidavit, appellant’s trial attorney also stated that he never

misrepresented to the court regarding any response filed by appellees; that he was

never served with any response to the complaint; that he was never aware before

6final judgment of any papers filed in the court by either appellee; and that at no

time within one year of the entry of the final judgment, did he receive any

response, answer, defenses, objections or documents from either appellee; nor did

he receive a phone call or email advising him of any response, answer, defenses, or

objections to the lawsuit or motions or documents filed by the appellees. He stated

that the first notice he received regarding any document filed on behalf of the

appellees was after one year expired from entry of the final judgment, when he

received a Notice of Appearance from appellees’ counsel. Appellant also filed

Plaintiff’s Response in Opposition to Defendants’ Motion to Set Aside Void

Default and Default Judgment in support of his position as to why appellees were

not entitled to set aside the default and the default final judgment.

The hearing on the motion to set aside was held on June 12, 2017. At the

hearing, appellant contended that appellees had not served appellant’s attorney

with a response to the complaint. Appellant further argued that appellees’ motion

was unverified; thus, the trial court could not consider it. The transcript of the

hearing indicates that the trial court did not review the record, but reviewed the

docket and granted appellees’ motion to set aside default and default judgment.

On appeal, appellant contends that the default final judgment was proper

because appellees were personally served with the summons and complaint, had

notice of all proceedings, and failed to object. We agree with appellant and reverse

7the trial court’s order granting appellees’ motion to set aside void default and

default judgment. The trial court’s order on appeal was entered pursuant to Florida

Rule of Civil Procedure 1.540(b)(4), thus the standard of review we apply is de

novo

. Vercosa v. Fields

, 174 So. 3d 550, 552 (Fla. 4th DCA 2015) (“Whether a

judgment is void is a question of law reviewed de novo.”).

First, we agree with appellant that appellees had notice of the lawsuit, thus

their due process rights were not violated. Appellees moved to set aside void

default and default judgment according to rule 1.540(b)(4). Rule 1.540(b)(4)

provides relief from void judgments, which may be granted at any time. Viets v.

Am. Recruiters Enters., Inc.

, 922 So. 2d 1090, 1095 (Fla. 4th DCA 2006). A

violation of due process renders a judgment void. Id. Due process requires fair

notice and an opportunity to be heard. Id.

Here, however, appellees were properly served with the complaint at their

home address in Texas. They do not dispute this. Appellees also were subsequently

served with the motions for default and notice of hearing on appellant’s motion for

default judgment, thereby providing them with notice and an opportunity to be

heard. Appellees did not attend the hearing, and they did not file objections to any

of the motions. Appellees were also served with the order of default, to which they

did not object. They were further served with the motion for entry of final

judgment and appellant’s affidavit claiming the $2,200,000.00 in damages, to

8which appellees also did not object. Therefore, appellee’s due process rights were

preserved, making the default judgment not void. Curbelo v. Ullman

, 571 So. 2d

443, 445 (Fla. 1990).

Moreover, pursuant to Florida Rules of Civil Procedure 1.540(b)(1),

1.540(b)(2), and 1.540(b)(3), voidable judgments must be challenged by motion no

later than one year after entry of judgment. In the case before us, appellees filed a

notice of appearance and an unverified motion to set aside void default and default

judgment on April 28, 2017, which is in excess of one year after entry of judgment

by the trial court. As a result of appellees’ non-compliance with the time

requirements of rule 1.540(b), their motion to set aside void default and default

judgment should not have been granted, even as a voidable judgment. See Sterling

Factors Corp. v. U.S. Bank Nat’l Ass’n

, 968 So. 2d 658, 665 (Fla. 2d DCA 2007)

(stating that a voidable judgment “cannot be challenged at any time as void under

rule 1.540(b)(4).”). Therefore, because the default judgment was neither void nor

voidable as a matter of law, the trial court erred in granting appellees’ motion to set

aside void default and default judgment.

With respect to the ex-parte letter that appears on the docket that appellees

claim they mailed to the Clerk of the Court in Miami-Dade County, Florida Rule of

Civil Procedure 1.500(b) states that if the trial court is to enter a default judgment

9after a paper has been filed, it must be done with notice to the party of the

application for default. Rule 1.500(b) provides:

By the Court. 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 document in the action, that party must be served with

notice of the application for default.

Thus, even if this Court considers the appellees’ ex-parte letter to be a document

that was filed in the action below, the Order on Default initially entered by the trial

court is still not void, as the record reflects that notice of the application for default

was served on appellees at their home address in Texas before the trial court

entered its default. 2 Thus, according to rule 1.500, the trial court’s order on default

was not void and should not have been set aside. 3

2 As previously discussed, the record contains a copy of the docket indicating an

ex-parte letter was docketed by the Clerk of Courts of Miami-Dade County on

February 19, 2015, however, the letter does not indicate that it was mailed or

delivered to appellant’s counsel. The Clerk of Court’s name is not stamped on the

letter. The letter contains one illegible stamp line on it that looks like a date. As the

appellant indicates in his brief, all documents filed with the clerk, except for

appellees’ ex-parte letter, have a five-line stamp. The first line is boldly printed and

states, “FILED FOR RECORD”. The second line contains the date. The third line

is stamped, “Clerk, Circuit & County Cts.” The fourth line is stamped, “MiamiDade County, Fla”. The fifth line is stamped, “Civil Division” and contains the

deputy clerk’s name who stamped the document and filed it. If the clerk’s stamp

includes Harvey I. Ruvin’s stamped name on the third line, then the deputy clerk’s

name is not stamped on the document. In that case, “Harvey I. Ruvin” is stamped

after “Filed for Record”, and the date, but before “Clerk, Circuit & County Cts”,

“Miami-Dade County, Fla”, and “Civil Division”.

3 In addition, with regard to the appellees’ contention that the damages were

10In sum, we find that the trial court erred in setting aside the default and

default judgment because, as a matter of law, it was neither void nor voidable. We

thus reverse the trial court’s order granting appellees’ Motion to Set Aside Void

Default and Default Judgment and remand for the trial court to reinstate the Order

of Default and Final Default Judgment in favor of appellant.

Reversed and remanded with instructions.

unliquidated, we disagree. The record reflects that the damages awarded to

appellant, $2.2 million with interest and court costs, was exactly the amount pled

in paragraph six of the appellant’s complaint (the total proceeds from the sale of

the Florida properties) and attested to in appellant’s Affidavit in Proof of Claim.

Appellees never objected to this amount, even after they received notice of the

amount and were given the chance to object before the entry of the final default

judgment. Consequently, even if the damages were unliquidated, appellees waived

their right to object. Miami Beverly LLC v. City of Miami

, 225 So. 3d 989 (Fla.

3d DCA 2017).

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