Cruz v. Desert Palace
| Decision Date | 08 November 2000 |
| Citation | 770 So.2d 306 |
| Parties | (Fla.App. 3 Dist. 2000) EMILIO CRUZ, Appellant, v. DESERT PALACE, INC., Appellee. NO. 3D00-966 JULY TERM, A.D. 2000 |
| Court | Florida District Court of Appeals |
An appeal from the Circuit Court for Dade County, Amy Steele Donner, Judge. LOWER TRIBUNAL NO. 98-20608
David S. Willig, for appellant.
No appearance for appellee.
Before LEVY, GERSTEN, and GREEN, JJ.
This is an appeal from an order denying appellant, Emilio Cruz's motion to reinstate the statutory period prescribed in section 55.509(1), Florida Statutes (1997), to oppose the domestication of a foreign judgment due to his lack of notice.1 We reverse.
Appellee, Desert Palace, Inc. d/b/a Caesar's Palace ("Desert Palace") obtained a final default judgment against Cruz, on a gambling debt, in the United States District Court for Nevada on December 24, 1991. The district court subsequently renewed this judgment and extended it for a period of six years in an order dated November 4, 1997. On or about September 17, 1998, Desert Palace sought to domesticate this judgment in Florida by filing a certified copy of the judgment and affidavit for recording with the clerk of court for Miami-Dade County, Florida. The clerk of court and/or Desert Palace as the judgment debtor was then required to promptly provide notice of the recording of the foreign judgment to Cruz pursuant to section 55.505(2), Florida Statutes (1997).2 Within thirty days of such notice, Cruz would have an opportunity to challenge the validity of the recording of the foreign judgment in an action for a stay of enforcement pursuant to section 55.509. See 55.505(3)3. During this thirty day period, no execution or other process for enforcement of the foreign judgment can issue. 55.505(3).
According to the record before us, the clerk of court did attempt to provide notice of the recorded judgment to Cruz at an address provided by Desert Palace. The address, however, was incorrect and the notice and copy of the recorded judgment was returned to the clerk of court where it was simply placed in the court file. Desert Palace never attempted to provide any alternative notice to Cruz as prescribed by section 55.505(2).
After thirty days had elapsed from Desert Palace's recording of the foreign judgment, Desert Palace began discovery in aid of execution on the judgment. Cruz was apparently located and thereafter served with a subpoena for a deposition. Cruz then filed a motion with the trial court seeking to re-establish or reinstate the thirty day period contained in section 55.505(3) for him to challenge the judgment. The trial court denied the motion and this appeal followed.
Cruz maintains, and we agree, that the trial court reversibly erred when it denied his motion to re-establish the thirty day time period for him to challenge this judgment where he undisputedly did not receive the prescribed notice of the recording of the Nevada judgment, either from the clerk of court or Desert Palace in accordance with section 55.505(3). The clear and unambiguous language of this statute provides in relevant part that:
No execution or other process for enforcement of a foreign judgment recorded hereunder shall issue until 30 days after the mailing of notice by the clerk. . . .
In this case, it is clear that the mailing of the notice by the clerk of court did not provide notice where it was returned due to an incorrect mailing address. Nor was alternative notice provided to Cruz by Desert Palace. Given this lack of notice, it was...
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...Ordinarily, a judgment debtor must receive notice by mail of the recording of a foreign judgment. See Cruz v. Desert Palace, Inc., 770 So.2d 306, 308 (Fla.3d Dist.Ct.App.2000) (holding that process for enforcement of a judgment creditor's foreign judgment could not be commenced where judgme......
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