Opinion
No. 85-2301.
June 11, 1986.
Appeal from the Circuit Court, Lee County, James R. Thompson, J.
Mark Norden of Mark Norden, P.A., Fort Myers, for appellant.
David J. DuPree of Bigelow and Winesett, Fort Myers, for appellees.
Gulf Southwestern Corporation appeals the final judgment entered in favor of John and Anna Becker dismissing appellant's cause of action. We agree with appellant's contention that the trial court abused its discretion in denying its motion to set aside the final judgment.
Appellant brought suit against appellees to enforce an oral contract to secure a verbal promise to pay with a mortgage. Appellant's counsel subsequently filed a motion to withdraw on the grounds that he could not contact appellant and that appellant had failed to make payments for services. Appellant's counsel certified that appellant had been furnished a copy of the motion to withdraw and a copy of the notice of hearing. The certificate of service indicated that service was made at an incorrect address. Subsequently, a final judgment was held without notice to appellant. The record does not dispute appellant's contention that it did not receive any notices or correspondence until after the final hearing, which resulted in its nonappearance at the final hearing and the ultimate dismissal of its cause of action.
Appellees contend that the cause of action was properly dismissed since no exceptional circumstances existed to excuse the negligence of appellant's counsel. We find that appellant's attorney's conduct in withdrawing from the case without ensuring that appellant received proper notice of the withdrawal in order to obtain new counsel was sufficient to afford appellant relief pursuant to Florida Rule of Civil Procedure 1.540(b). See Moss v. State Farm Mutual Automobile Insurance Co., 328 So.2d 495 (Fla. 4th DCA 1976).
Accordingly, we reverse the order denying appellant's motion to set aside the final judgment and remand for further proceedings.
RYDER, C.J., and GRIMES, J., concur.