DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MOHAMMAD ABOUMAHBOUB and FINANCIAL GROUP OF AMERICA, 

LLC, d/b/a BUY-RITE AUTO SALES,

Appellants,

v.

PAUL HONIG,

Appellee.

No. 4D15-1763

[December 9, 2015]

Appeal of a non-final order from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Catherine M. Brunson, Judge; L.T. 

Case No. 50-2012CA-016912-AO.

Michele K. Feinzig of Law Offices of Robin Bresky, Boca Raton, for 

appellants.

Ronnie D. Dykes of Law Office of Ronnie D. Dykes, P.A., Boca Raton, 

for appellee.

WARNER, J.

Mohammad Aboumahboub and Financial Group of America, LLC 

appeal the denial of their motion to vacate an ex parte final judgment 

entered based on their default of payment obligations under a mediated 

settlement agreement. The trial court abused its discretion in denying the 

motion to vacate where the appellants proved, without dispute, that 

appellee, Paul Honig, had filed the ex parte motion for entry of a final 

judgment even though the appellants had cured the default in accordance 

with the settlement agreement’s terms.

The appellants and Honig entered into a mediated settlement 

agreement regarding a business dispute. The appellants agreed to pay a 

settlement sum of $56,000 under a specific payment plan. The 

agreement’s payment schedule contemplated that the entire sum would be 

paid by November 2014. The agreement included a default cure provision 

that required Honig to allow the appellants five days, after delivery of a 
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written notice of default, to remedy any non-payment. Specifically, the 

agreement provided:

In the event DEFENDANTS fail to make any payment when 

payment is due as required hereunder, the PLAINTIFF shall 

provide DEFENDANTS written notice of the default by mail, fax 

or email at the address provided hereinafter. In the event 

payment is not made or proof of payment provided within five 

(5) days of delivery of notice of non-payment to DEFENDANTS, 

PLAINTIFF shall be entitled to a Final Judgment against the 

DEFENDANTS, jointly and severally, on an ex parte basis 

without further notice or hearing, in the amount of ONE

HUNDRED THOUSAND AND NO/100 DOLLARS 

($100,000.00) less the amount of all payments made, plus 

reasonable attorney’s fees and costs incurred in obtaining the 

Final Judgment. An affidavit of PLAINTIFF shall be sufficient 

proof as to the DEFENDANTS’ default as well as the amounts 

due and owing hereunder.

(Emphasis added). This term gave Honig the choice of the method of 

notice—“mail, fax or email.” (Emphasis added). The settlement agreement 

provided both a specific email address and a physical mailing address for 

“[a]ll notices” to the appellants. The default judgment principal amount of 

$100,000, less payments made, exacted a substantial penalty or 

liquidated damages above the $56,000 settlement figure.

On March 17, 2014, Honig filed an ex parte Motion for Final Judgment 

on Default. The motion alleged that Honig sent a demand letter to the 

appellants in accordance with the settlement agreement. He also alleged 

that the appellants had “failed to pay in accordance with the Agreement 

and refused to make any further payments.” Attached to the motion was 

the demand letter; it was addressed as “CERTIFIEDMAIL [sic] RETURN 

RECEIPT REQUESTED” to the physical address specified in the settlement

agreement. The letter also listed two email addresses, neither of which 

matched the email address included in the settlement. The letter notified 

the appellants of their default and demanded payment of $1,800 to cure 

within five days, or Honig would file a motion for default judgment 

pursuant to the settlement provision quoted above. Also attached to the 

motion was a certified return request mailing receipt, indicating that the 

letter was mailed on March 8, 2014, and delivered to the appellants on 

March 10, 2014. Based upon the motion, the court entered a final 

judgment on March 25, 2014, for the default amount due, plus attorney’s 

fees and costs.
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The appellants moved to vacate the final judgment. They contended 

that Honig had misrepresented to the court that the default was not cured. 

After receiving the notice on March 10, the appellants paid the default 

amount of $1,800 on March 13, 2014. Evidence of that payment was

attached to the motion to vacate.1

The court held a hearing on the motion to vacate the default. The 

appellants testified that they received the certified letter on March 10th 

and made the payment demanded on March 13th. Honig’s motion for 

default judgment was not filed until March 17th, but it neither mentioned 

that the appellants had made the payment, nor revealed that the $1,800 

payment was in the amount of the requested payment. Honig discounted 

the certified mail notice and testified that his attorney sent the notice to 

the two email addresses listed in the letter. Although neither of these 

matched the email address in the settlement agreement, they were 

addresses that the appellants had successfully used to communicate with 

Honig.

The appellants argued to the court that the email notices were not sent 

to the address in the settlement agreement. The certified mail was sent to 

the correct address and allowed the appellants five days from March 10th 

to pay the amount required, which they did. Therefore, when Honig filed 

his motion and affidavit on March 17th, he misrepresented to the court 

that the appellants had not cured the default. In the motion, Honig had 

stated that the appellants had failed to pay and “refused” to pay. This was 

untrue.

Honig also argued that the appellants had failed to comply with two 

notices of default sent in February, neither of which were mentioned in the 

motion for final judgment. According to Honig, the appellants were in 

default from this earlier time, and therefore the final judgment should not 

be vacated. The court took the matter under advisement and later entered 

a one-sentence denial of the motion, making no findings. The appellants 

appeal the order of denial.

The decision in this case is controlled by the interplay between two legal 

principles, namely that parties have broad discretion in fashioning the 

terms of a settlement agreement, while provisions in an agreement that 

permit a court to take ex parte action are strictly and narrowly construed.

1 We omit a discussion of the modified payment schedule and other email 

addresses the parties used to communicate because we deem these matters to 

be legally insignificant.
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Florida Rule of Civil Procedure 1.540(b) provides as follows:

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 . . . .

(Emphasis added). “The standard of review of an order on a rule 1.540(b) 

motion is whether there has been an abuse of discretion.” Vilvar v. 

Deutsche Bank Trust Co. Ams., 83 So. 3d 853, 854 (Fla. 4th DCA 2011) 

(citing J.J.K. Int’l, Inc. v. Shivbaran, 985 So. 2d 66, 68 (Fla. 4th DCA 2008)). 

That discretion must be exercised based upon facts ascertainable from the 

record. Moss v. State Farm Mut. Auto Ins. Co., 328 So. 2d 495, 496 (Fla. 

4th DCA 1976).

Federal Home Loan Mortgage Co. v. Molko, 602 So. 2d 983 (Fla. 3d DCA 

1992), succinctly states the law regarding interpretation of settlement 

agreements:

Settlement agreements “are governed by the rules for 

interpretation of contracts.” Robbie v. City of Miami, 469 So.

2d 1384, 1385 (Fla. 1985). The clear expression of the 

meaning of a contract may not be modified by court 

interpretation, Pafford v. Standard Life Ins. Co., 52 So. 2d 910 

(Fla. 1951); BMW of N. Am., Inc. v. Krathen, 471 So. 2d 585, 

587 (Fla. 4th DCA 1985), review denied, 484 So. 2d 7 (Fla.

1986); “[i]f the terms are clear and unambiguous, the express 

terms control.” Avery Dev. Co. v. Bast, 582 So. 2d 150, 151 

(Fla. 4th DCA 1991).

Id. at 983. The settlement agreement provided for written notice of default 

to be sent to the addresses provided in the agreement, and specified that 

all notices be sent to those addresses. Honig did not send his notice to 

the email address in the agreement. Rather, his attorney emailed the 

notice to two other addresses and sent it by certified mail to the physical 

address listed in the agreement. Only the certified letter complied with the 

terms of the settlement agreement.

Recognizing this fact, Honig’s motion for default final judgment did not 

mention email service but relied on the return receipt from the certified 

mail, which was sent to the physical address in the settlement agreement,
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to establish delivery of the notice to the appellants on March 10th. Honig 

swore that the appellants had not made any payment and refused to make 

further payments, despite the fact that he had received the specified 

default payment four days prior to the filing of the motion and within the 

five-day cure period. This constituted a misrepresentation which should 

have resulted in the vacation of the final judgment. The trial court abused 

its discretion in denying the motion when the facts from the record 

conclusively established the misrepresentation.

At the hearing, Honig backed away from his motion for final judgment 

by claiming, alternatively, that he relied on the email of the notice to 

addresses other than the one contained in the settlement agreement. The 

email was sent on March 6th and thus required a cure of the default by 

March 11th. However, for the court to rely on either email address to 

conclude that notice was sufficient would contravene the express terms of 

the agreement. The court cannot modify the express terms of the 

agreement. Molko, 602 So. 2d at 983. Also, even using March 6th as the 

date of email delivery, the five-day cure period would have expired on 

March 11th, the day after the certified letter was delivered. At the very 

least, the appellants would have a case of mistake or excusable neglect 

when they measured the time to cure from the date of delivery of the 

certified letter, which complied with the terms of the agreement, rather 

than the March 6th date, which was based on the use of email addresses

not contained in the settlement agreement.

This was, after all, an ex parte motion for entry of final judgment. Due 

process requires strict compliance with any agreement that permits the 

entry of an ex parte judgment. Entry of ex parte orders are very much 

disfavored in the law. This is one lesson of Fricker v. Peters & Calhoun Co., 

21 Fla. 254 (1885). There, the Florida Supreme Court described the rule 

requiring notice to a defendant before an application for a receiver as “very 

strict,” subject to narrow exceptions such as “in a case of grave emergency, 

demanding the immediate interference of the court for the prevention of 

irreparable injury.” Id. at 256-57; see also Fla. R. Civ. P. 1.610(a)(1) 

(concerning temporary injunctions without notice); Mercy Lu Enters., Inc. 

v. Liberty Mut. Ins. Co., 681 So. 2d 758, 759 (Fla. 4th DCA 1996) (observing 

that “[d]ue process values” require “strict compliance with the statutory 

requirements” of substituted service of process). Where strict compliance 

with the notice terms of an agreement is not observed, the ex parte

judgment must be vacated.

For these reasons, the trial court abused its discretion in denying the 

motion to vacate the default final judgment. We reverse and remand for 

the vacation of the judgment.
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GROSS and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.