Saenz v. Pena

• Decision Date: 05 April 2000
• Docket Number: No. 3D99-1664.,3D99-1664.
• Citation: Saenz v. Pena, 754 So.2d 826 (Fla. App. 2000)
• Parties: Carlos SAENZ, Appellant, v. Mercedes PENA, Appellee.
• Court: Florida District Court of Appeals

754 So.2d 826

Carlos SAENZ, Appellant, v. Mercedes PENA, Appellee.

No. 3D99-1664.

District Court of Appeal of Florida, Third District.

April 5, 2000.

Kilpatrick Stockton and Carlos F. Concepcion and Raul A. Arencibia, Coral Gables, for appellant.

Robert, Miami, and Kenneth S. Spiegelman, Miami Beach, for appellee.

Before COPE, SHEVIN and SORONDO, JJ.

SORONDO, J.

Carlos Saenz appeals from the lower court's order denying his motion to set aside final judgment for Mercedes Pena.

In November 1994, Pena commenced an action against Saenz as owner and lessor of an apartment complex, contending that she was injured when he breached his duty to maintain the property in a reasonably safe condition. On August 18, 1998, the trial court sent the parties a uniform order setting the case for jury trial during the two week period commencing on April 19, 1999. A copy of the order was sent to Saenz's counsel of record at the time.

On March 23, 1999, Saenz's counsel moved to withdraw, stating that she had lost contact with her client and had no means to communicate with him. The certificates of service on the motion to withdraw and the accompanying notice of hearing reflect that they were served on Pena's counsel but did not reflect that copies were mailed to Saenz. On April 19, 1999, the trial court entered an order permitting Saenz's counsel to withdraw and stating that any further pleadings be sent to Saenz. The lower court then entered a directed verdict on the liability issue against Saenz, who was not present, and the jury returned a verdict awarding Pena $160,789.65 in damages. On April 20, 1999, a final judgment was entered against Saenz, with copies sent to Saenz, his predecessor counsel and Pena.

On May 14, 1999, Saenz served an unsworn pro se motion to set aside the final judgment. In the motion, he alleged that he had been residing outside of Florida due to health problems, that he returned to the state after April 19th and upon retrieving his mail he learned for the first time that a final judgment had been entered, that he did not receive any notice that his attorney had withdrawn or that the case was going to trial on April 19th and that he was unable to defend himself. On May 26, 1999, after a non-evidentiary hearing, the trial court entered an order denying the motion to set aside the judgment. Saenz appeals.

We conclude that because the motion to withdraw was filed without notice to Saenz, in violation of the mandatory notice requirements of ...