24 Fla. L. Weekly Supp. 731a
Online Reference: FLWSUPP 2409DINHInsurance — Personal injury protection — Dismissal — Lack of prosecution — Where there is no evidence to dispute medical provider’s claim that it did not receive service of notice of lack of prosecution in PIP case in which insurer had confessed judgment, order of dismissal is set aside for limited purpose of conducting hearing to determine reasonable attorney’s fees and costs to be awarded to provider
FIDEL S. GOLDSON, D.C., P.A. (a/a/o Dinham, Junior), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-13192 COCE 55. August 11, 2016. Daniel J. Kanner, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Cory J. Gorrick, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO SETASIDE ORDER OF DISMISSAL FORLIMITED PURPOSE OF FEE HEARING
THIS CAUSE having come before the court on July 27, 2016, upon Plaintiff’s Motion to Set Aside Order of Dismissal for Limited Purpose of Fee Hearing, and the Court having considered the Plaintiff’s motion, having heard argument of counsel and being otherwise fully advised, it is hereupon
ORDERED that Plaintiff’s Motion to Set Aside Order of Dismissal for Limited Purpose of Fee Hearing is GRANTED, for the following reasons:
1. Defendant filed its Notice of Confession of Judgment on December 7, 2012, in which Defendant confessed judgment on Plaintiff’s claim for PIP benefits and acknowledged its responsibility to pay personal injury protection benefits and recognized Plaintiff’s entitlement to reasonable attorney’s fees and costs.
2. The court docket reflects that on February 21, 2014, the court served a Notice of Lack of Prosecution, scheduling a hearing for May 8, 2014. The Notice of Lack of Prosecution does not contain addresses for the parties who were intended to receive the Notice.
3. On May 12, 2014, the court entered an Order of Dismissal, when the Plaintiff did not appear at the May 8, 2014 hearing. The Order of Dismissal does not contain names or addresses to reflect that the Order of Dismissal was furnished to anyone.
4. According to the Affidavit of Aura D. Brooks, Esq., filed in support of Plaintiff’s Motion to Set Aside Dismissal, Plaintiff has no record of receiving the Notice of Lack of Prosecution, as a result of which no attorney was scheduled to attend the May 8, 2014 hearing.
5. At the July 27, 2016 hearing on Plaintiff’s Motion to Set Aside Order of Dismissal, Plaintiff’s counsel argued that the May 12, 2014 Order of Dismissal was void, as a result of the absence of notice of the May 8, 2014 hearing.
6. A judgment entered without notice to a party is void. Polani v. Payne, 654 So.2d 202 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D962b]; Taylor v. Bowles, 570 So.2d 1093 (Fla. 4th DCA 1990).
7. Rule 1.540(b)(4), Fla.R.Civ.P., provides that on motion and on such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order or proceeding where the judgment is void.
8. There is no evidence in the record refuting Ms. Brooks’ contention that Plaintiff did not receive service of the Notice of Lack of Prosecution. The failure of a court to properly effect service of a notice of inactivity deprives a plaintiff of the opportunity to avail itself of the period provided by rule within which to act. Courtney v. Catalina, Ltd., 130 So.3d 739 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D208a].
9. Accordingly, the Motion to Set Aside Order of Dismissal for the limited purpose of a fee hearing is GRANTED, and the parties are directed to schedule a hearing for the purpose of the court’s determination of reasonable attorney’s fees and costs to be awarded.
