Highsmith, Highsmith v. Britten

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
MELISSA HIGHSMITH,
Appellant,
v.
PAUL BRITTEN and GARRETT HIGHSMITH,
Appellees.
No. 2D2025-0679
December 17, 2025
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Hillsborough County; Melissa M. Polo, Judge.
Jeremy Roth of Roth Legal Counsel, Tampa (withdrew after briefing);
Ciera C. Gainey of Matthew Law Group, Jacksonville (substituted as
counsel of record), for Appellant.
Robert E. Biasotti and Brandon S. Vesely of The Florida Appellate Firm,
P.A., St. Petersburg, for Appellee Paul Britten.
No appearance for remaining Appellee.
LABRIT, Judge.
In the proceedings below, Melissa Highsmith timely filed a motion
to set aside a default judgment under Florida Rule of Civil Procedure
1.540(b)(3). The trial court denied her motion without a hearing. Ms.
Highsmith argues that she was entitled to an evidentiary hearing
because her motion sufficiently alleged a claim for relief based on fraud.
We agree.

2
Generally, if a rule 1.540(b) motion "sets forth 'a colorable
entitlement to relief,' the trial court should conduct an evidentiary
hearing to determine whether such relief should be granted." See Cottrell
v. Taylor, Bean & Whitaker Mortg. Corp., 198 So. 3d 688, 691 (Fla. 2d
DCA 2016) (quoting Chancey v. Chancey, 880 So. 2d 1281, 1282 (Fla. 2d
DCA 2004)). Where such a motion is based on fraud, misrepresentation,
or misconduct of an adverse party under rule 1.540(b)(3)—as Ms.
Highsmith's was—the movant must specify the alleged fraud with
particularity, setting forth essential facts that would entitle the movant to
relief and not mere legal conclusions. See U.S. Bank Nat'l Ass'n v. Paiz,
68 So. 3d 940, 944 (Fla. 3d DCA 2011); Freemon v. Deutsche Bank Tr. Co.
Ams., 46 So. 3d 1202, 1205 (Fla. 4th DCA 2010).
Here, Ms. Highsmith's motion alleged that an individual with power
of attorney over the plaintiff1 told her that the complaint was "just a legal
formality" and that she didn't need to file a response, so she didn't file
one. The plaintiff then obtained a default judgment that adjudged him to
be the fee simple owner of real property that Ms. Highsmith's mother
owned at the time of her death. Ms. Highsmith alleged that this was part
of an "orchestrated . . . plot and scheme to defraud" her of her intestate
interest in her mother's property, and the motion explained this alleged
scheme in detail. While the motion does not mention what occurred in
the proceedings after Ms. Highsmith was told not to file a response or
1 According to the appellee, Ms. Highsmith failed to allege
misconduct of "an adverse party" sufficient to entitle her to relief under
rule 1.540(b)(3), see Casteel v. Maddalena, 109 So. 3d 1252, 1256 (Fla.
2d DCA 2013), because this individual was acting on his own behalf and
not on behalf of the plaintiff, see Power of Attorney, Black's Law
Dictionary (12th ed 2024). But Ms. Highsmith's motion is unclear on this
point, and it presents a factual issue that this court cannot resolve on
appeal.

3
indicate whether she had notice of the default judgment the plaintiff
sought, we conclude that Ms. Highsmith's motion alleged just enough to
warrant an evidentiary hearing. See Gulf Stream Boat Builders, Inc. v. S.
Dade Boat, Inc., 583 So. 2d 807, 808 (Fla. 3d DCA 1991); Am. Republic
Ins. v. Westchester Gen. Hosp., 414 So. 2d 1163, 1163–64 (Fla. 3d DCA
1982).
We therefore reverse the order denying Ms. Highsmith's rule
1.540(b)(3) motion and remand for proceedings consistent with this
opinion.
Reversed and remanded.
SILBERMAN and SLEET, JJ., Concur.
Opinion subject to revision prior to official publication.