Summary
holding that order granting an ore tenus, ex parte motion for default made with no prior notice to any party violated due process
Summary of this case from Lana v. Assimakopoulos-Panuthos (In re Estate of Assimakopoulos)Opinion
No. 89-0520.
June 6, 1990.
Appeal from the Circuit Court, Palm Beach County, Edward A. Garrison, J.
Frank J. Bennardo, Boca Raton, for appellants.
Ronald M. Zakarin of Schwartz, Gold, Cohen Zakarin, P.A., Boca Raton, for appellees.
This is an appeal of a final judgment entered upon a default which was imposed as a sanction for failure to appear at docket call. We reverse.
Appellants had filed pleadings in the trial proceedings prior to the withdrawal of their attorney. Where a party has participated in an action by filing a pleading "he shall be served with notice of the application for default." Fla.R.Civ.P. 1.500. The application for default in the instant case was an ore tenus motion made by appellee at docket call when appellants were not present. There was no prior notice. It is well settled that a failure to produce proof of service of the required notice of application for default alone renders the entry of a default judgment erroneous. Gonzalez v. Moriyon, 553 So.2d 249 (Fla. 3d DCA 1989); Connecticut General Dev. Corp. v. Guson, 477 So.2d 665 (Fla. 5th DCA 1985); Kiaer v. Friendship, Inc., 376 So.2d 919 (Fla. 3d DCA 1979); South Florida Vendorama, Inc. v. Colodny, 348 So.2d 1212 (Fla. 4th DCA 1977).
It is not necessary to discuss appellants' additional grounds for reversal.
REVERSED and REMANDED.
DOWNEY and WALDEN, JJ., concur.