J&J INDUSTRIES, INC., APPELLANT,
v.
CARPET SHOWCASE OF TAMPA BAY, INC., APPELLEE
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J&J Industries appeals a default judgment and dismissal of its counterclaim for failure to timely file an answer. The court reversed the default order, holding the trial court erred by entering default without notice despite J&J having filed papers in the action, but affirmed dismissal of the counterclaim as non-compulsory.
The trial court erred in entering default without providing notice to J&J, as Florida law requires notice when a defendant has filed any paper in the action. However, the trial court properly dismissed the counterclaim because it was not compulsory, as it lacked a logical relationship to the original claim under the Londono v. Turkey Creek test.
[1] A party who has filed any paper in an action must be served notice of an application for default, even if the filing was untimely.
[2] A counterclaim is not compulsory if there is no logical relationship between the counterclaim and the original complaint.
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Join FLexlaw to unlock all legal intelligence“When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, that party shall be served notice of the application for default.”
Florida Rule of Civil Procedure 1.500(b) establishes that notice of default application is required when the defendant has filed any paper in the action.
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Join FLexlaw to unlock all legal intelligenceJ&J Industries failed to timely file an answer and counterclaim to Carpet Showcase's complaint, but ultimately filed both before the trial court enter…
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PARKER, Acting Chief Judge.
J&J Industries, Inc. (J&J), appeals the order entering a default against J & J for failing to timely file an answer, and the nonfinal order dismissing its counterclaim against Carpet Showcase of Tampa Bay, Inc. (Carpet). We reverse the default and affirm the dismissal of the counterclaim.
J&J asserts that the trial court erred by entering the default on its own motion without giving J&J notice of default when J&J had filed a counterclaim and an answer before the court ordered the default. Florida Rule of Civil Procedure 1.500(b) provides:
When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, that party shall be served notice of the application for default.
(Emphasis added.)
The record supports that although J&J untimely filed its answer and counterclaim, it did file these items before the court entered a default; therefore, the court erred by entering the default without giving J&J notice. See EGF Tampa Assocs. v. Edgar V. Bohlen, G.F.G.M. A.G., 532 So. 2d 1318, 1320 (Fla. 2d DCA 1988) (holding that any paper served prior to entry of default requires that the party against whom default is sought shall receive notice of the application for default). See also Barnett Bank of Southwest Florida v. Anderson, 488 So. 2d 923, 924 (Fla. 2d DCA 1986) (holding that it was error for the trial court to enter default after defendant filed amended answer).
J&J also contends that the trial court erred by dismissing its counterclaim, which J&J filed four years after Carpet filed its original complaint. The trial court determined that pursuant to the guidelines set forth in Londono v. Turkey Creek, Inc., 609 So. 2d 14 (Fla.1992), the counterclaim was not compulsory because there was no logical relationship between the two claims. We agree, based on the record before this court, that the counterclaim is not compulsory.
We affirm the nonfinal order dismissing the counterclaim; however, we set aside the default and remand for further proceedings in the trial court.
GREEN, J., and DANAHY, PAUL W„ (Senior) Judge, Concur.
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Baldomiano Rangel v. Midfirst Bank, 187 So. 3d 289 (Fla. 4th DCA 2016)…mphasis added); TLC Trust v. Sender, 757 So. 2d 570, 571 (Fla. 4th DCA 2000) (“A default is, therefore, improper when a party has filed a responsive pleading prior to the entry of default.”); J & J Indus., Inc. v. Carpet Showcase of Tampa Bay, Inc., 745 So. 2d 1042, 1042 (Fla. 2d DCA 1999) (holding that although the defendant failed to file a timely answer, the court erred by entering default without first giving the defendant notice of application of default). The purported “self-executing” default against Ho…
Authorities Cited
- Javier H. Londono, M.D. v. Turkey Creek, Inc., 609 So. 2d 14 (Fla. 1992)
- EGF Tampa Assocs. v. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988)
- Barnett Bank OF Sw. Fla., N.A. v. Anderson, 488 So. 2d 923 (Fla. 2d DCA 1986)