Kanecke v. Lennar Homes, Inc.

543 So. 2d 784, 14 Fla. L. Weekly 903, 1989 Fla. App. LEXIS 1919, 1989 WL 33989

• Court: District Court of Appeal of Florida
• Decided: April 11, 1989
• Docket: 88-2313
• Status: Published

Opinion

543 So.2d 784 (1989)

John KANECKE, Appellant,
v.
LENNAR HOMES, INC., Appellee.

No. 88-2313.

District Court of Appeal of Florida, Third District.

April 11, 1989. Rehearing Denied June 16, 1989.

Freshman, Freshman & Traitz, Hershoff, Levy & Swartz and Jay M. Levy, Miami, for appellant.

Lanza, O'Connor, Armstrong, Sinclair & Tunstall and Edward J. Serer, Coral Gables, for appellee.

Before NESBITT, BASKIN and COPE, JJ.

PER CURIAM.

We have for review an order denying a motion for relief from judgment pursuant to Rule 1.540(b), Florida Rules of Civil Procedure. We reverse.

The trial court entered summary judgment against appellant. It is undisputed that appellant received no notice of the entry of the summary judgment for over thirty days after its rendition. The time for appeal had therefore expired prior to appellant being aware that judgment had been entered. Appellant moved for relief from judgment under Rule 1.540(b), requesting that the trial court vacate the order and reenter it, so as to re-start the time for appeal. The trial court denied the motion without a statement of reasons. This appeal is from the denial of the Rule 1.540 motion.

Where, as here, the uncontroverted facts showed that appellant did not receive notice, the trial court was obligated to grant relief from the judgment as a matter of law. Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So.2d 758, 759 (Fla. 3d DCA 1986); accord Southeastern Fidelity Ins. Co. v. Truck Ins. Exch., 521 So.2d 306 (Fla. 3d DCA 1988); Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980); Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971); see also Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla. 1979).

Reversed.