Monday, July 27, 2009

Plaintiff's Claim it Did Not Receive Notice of Hearing Requires Evidentiary Hearing

In Depelisi v. Wishner (4D08-2581), the Fourth District reversed a dismissal order because the trial judge failed to conduct an evidentiary hearing to determine if the plaintiff had received a notice of hearing on defendant's motion to dismiss.

There were apparently prior issues with notices of hearing, as the Fourth District noted, because the trial court had previously issued an order requiring communication before any hearing could be noticed.

The defendants filed motions to dismiss. Despite the order, one of the defendants filed a notice of hearing on the motion for May 7, 2008. The certificate of service indicated that the notice was sent by mail on April 29, 2008. Plaintiff’s counsel failed to appear at the hearing. Defense counsel advised the court that he had faxed and mailed the notice to plaintiff’s counsel, and had called and left messages on both the cell and office phones. The judge called plaintiff’s counsel on his cell and office numbers, heard counsel’s voice mail, and left a message instructing the lawyer to return the call. The judge then heard a motion for protective order, but declined to hear the motion to dismiss.

The next day, the same defendant filed a re-notice of hearing for May 22, 2008, certifying that notice was sent by mail to the same address for plaintiff’s counsel. Once again, neither the plaintiff nor his counsel appeared at the hearing. Defense counsel explained to the court the efforts taken to notice plaintiff’s counsel, which included mail, fax, and phone notice. Defense counsel also advised the court that he had difficulty reaching plaintiff’s counsel, but had received a message indicating that plaintiff’s counsel had moved and no longer had a fax machine. The trial court proceeded with the hearing. The court granted the motion to dismiss with prejudice, and added that the “[p]laintiff was duly noticed and for the second time failed to appear.

The plaintiff then filed a motion for rehearing, arguing they never received notice of the hearing on the motion to dismiss. "A successor judge heard the motion. That judge indicated that he was bound by the prior trial judge’s findings that the plaintiff’s counsel had been notified and could not rehear the issue." The Fourt District reversed, holding that the trial court was required to conduct an evidentiary hearing:

A presumption of notice arises when a certificate of service indicates that pleadings and orders were mailed to counsel. Camerota v. Kaufman, 666 So. 2d 1042, 1045 (Fla. 4th DCA 1996). That presumption is rebuttable. Id; W.T. Holding v. Agency for Health Care Admin., 682 So. 2d 1224, 1225–26 (Fla. 4th DCA 1996). “While a sworn affidavit stating that the filing was not received will not automatically overcome the presumption, such an affidavit will create an issue of fact which must be resolved by the trial court.” Camerota, 666 So. 2d at 1045. That resolution requires an evidentiary hearing. Torrey v. Torrey, 815 So. 2d 773, 775–76 (Fla. 4th DCA 2002).


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