Nickolaos G. Bourbous v. Tropic Sun Properties, LLC, Najmi Realty, LLC and Frank Najmi

• Court: District Court of Appeal of Florida
• Decided: June 13, 2025
• Docket: 6D2023-3079
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2023-3079 Lower Tribunal No. 21-CA-003080 _____________________________

NICKOLAOS G. BOURBOUS,

Appellant, v.

TROPIC SUN PROPERTIES, LLC, NAJMI REALTY, LLC, and FRANK NAJMI,

Appellees. _____________________________

Appeal from the Circuit Court for Lee County. James Shenko, Judge.

June 13, 2025

PER CURIAM.

Nickolaos Bourbous appeals a final judgment in favor of Frank Najmi, a/k/a

Farhang Najmi, and a preceding order vacating a default final judgment against him.

We affirm in part and reverse in part. We cannot disturb the trial court’s vacatur

ruling because a missing transcript hinders our review. See Applegate v. Barnett

Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). But we reverse the trial

court’s judgment in Najmi’s favor because it violated Bourbous’ due process rights. Bourbous sued “Frank Najmi” and two companies he owned over a failed real

estate transaction involving multiple properties in Lee and Charlotte Counties.

Bourbous claimed that “Frank Najmi” and one of his companies had breached their

obligations to buy every property subject to their agreement. He also sued “Frank

Najmi” for fraud and deceptive trade practices in connection with the deal. After

obtaining a default against “Frank Najmi,” the matter proceeded to trial against

Najmi’s companies. The jury largely found in Bourbous’s favor, but it awarded him

no damages.

When Bourbous sought post-judgment relief against Najmi’s other company

by seeking to obtain “Frank Najmi’s” interest in it, Bourbous and the trial court

learned for the first time that “Frank Najmi” and “Fahrang Najmi” were the same

person. The trial court allowed Bourbous to lien Najmi’s interest in the company

until Najmi satisfied the default judgment against him.

Najmi moved to set this default judgment aside under Florida Rule of Civil

Procedure 1.540(b), alleging that Bourbous never served him properly and that he

had procured the judgment by fraud because he sold the remaining properties at issue

to another buyer before he sought default against Najmi. The trial court granted

Najmi’s motion. Even though it based its vacatur, at least in part, on a factual error,1

1 The trial court mistakenly concluded Bourbous moved for default judgment after trial, as opposed to nine months beforehand.

2 we decline to disturb this ruling because without a transcript, we cannot conclude

that the order “is not supported by the evidence or by an alternative theory.” See

Applegate, 377 So. 2d at 1152.

After setting aside the default final judgment, the trial court immediately

entered a final judgment in Najmi’s favor. Bourbous claims the trial court violated

his due process rights by foreclosing his claims against Najmi by entering a final

judgment without further proceedings. We agree.

We review de novo alleged violations of due process. See Pavilion at

Healthpark, LLC v. S.M., 403 So. 3d 517, 519 (Fla. 6th DCA 2025) (citing Butler v.

Brown, 338 So. 3d 392, 393 (Fla. 5th DCA 2022)). “When a court vacates a

judgment pursuant to a rule 1.540 motion, the effect of that ruling is to return the

case and the parties to the same position that they were in before the court entered

the judgment.” Bane v. Bane, 775 So. 2d 938, 941 (Fla. 2000) (citing Adelhelm v.

Dougherty, 176 So. 775, 777 (Fla. 1937)). “The procedure for vacating judgments

under rule 1.540 does not contemplate disposition on the merits. Fact finding in

such a proceeding is limited to those facts necessary to a disposition of the motion

for relief and does not extend to a finding on the actual substantive issues in the

cause.” SPS Corp. v. Kinder Builders, Inc., 997 So. 2d 1232, 1234 (Fla. 3d DCA

2008) (quoting Zwakhals v. Senft, 206 So. 2d 62, 63 (Fla. 4th DCA 1968)).

3 The trial court thus deprived Bourbous of the right to have his claims against

Najmi decided on the merits by entering a void judgment in violation of his due

process rights. See Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090, 1095 (Fla.

4th DCA 2006). This error was harmful because Bourbous advanced several

individual claims against Najmi. We thus reverse and remand for further

proceedings.

AFFIRMED in part; REVERSED in part; and REMANDED.

TRAVER, C.J., and STARGEL and WOZNIAK, JJ., concur.

Trisha L. Ryan, of Lusk, Drasites & Tolisano, P.A., Cape Coral, for Appellant.

Christine F. Wright, of Wright Law Firm, P.A., Cape Coral, for Appellees.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED