SOUTH FLORIDA VENDORAMA, INC., APPELLANT,
v.
MICHAEL COLODNY, D. F. OF HOLLYWOOD, INC., A FLORIDA CORPORATION, ET AL., AND FLORIDA BUSINESS OPPORTUNITIES, INC., APPELLEES
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South Florida Vendorama appealed the entry of a default judgment against the seller in an interpleader action over a disputed business sale deposit. The court reversed, holding that the seller was entitled to notice of the default motion because it had filed multiple papers in the action, triggering the notice requirement under Florida Rule of Civil Procedure 1.500(b).
The court held that the seller, having filed and served many papers during the eighteen-month period, was entitled to notice of the application for default pursuant to Rule 1.500(b), which requires notice when a party against whom affirmative relief is sought has filed or served any paper in the action.
[1] A party who has filed or served any paper in an action is entitled to notice of an application for a default judgment, even if they have failed to plead or otherwise defe…
[2] A court may not enter an ex parte default judgment against a party who has participated in the litigation by filing or serving papers, without providing that party with n…
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Join FLexlaw to unlock all legal intelligence“By the Court. 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 . . , the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default”
The controlling rule establishing that notice is required when the defaulting party has filed any paper in the action
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Join FLexlaw to unlock all legal intelligenceAn interpleader action was filed by a stakeholder holding a $108,000 deposit from a collapsed business sale agreement, with the proposed buyer and sel…
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LETTS, Judge.
This is a consolidated appeal from the granting of an ex parte default judgment for failure to answer a cross claim. We reverse.
The original complaint in interpleader was filed by the named stakeholder, in an agreement for the sale of a business, against the proposed buyer and seller named as defendants. The sale had collapsed and both buyer and seller were demanding the $108,000.00 'deposit from the stakeholder. Not unexpectedly, both the buyer and seller filed cross claims against each other, which the buyer duly answered, but which the seller omitted so to do for a period of eighteen months. At the end of this time lapse, the buyer filed a motion for default which the judge granted on the same day without any notice to the seller.1 Also all on the same afternoon, the judge entered a final default judgment for $108,-000.00, plus interest, against the seller and in favor of the buyer. There are other procedural and factual complications to these consolidated appeals, but the foregoing is deemed adequate for disposition hereunder. Rule 1.500(b) Fla.R.Civ.P. (1976) provides in pertinent part:
By the Court. 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 . . , the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default (Emphasis supplied). Pursuant to this rule, the buyer defends the entry of the default because of the failure to file any answer to the cross claim. The fallacy in this argument, however, rests upon the words emphasized above in the quoted rule. The seller did file and serve many papers during the eighteen month period including, for example, a motion for continuance, motion to withdraw as counsel, notice of taking deposition and motion for summary judgment. Similarly, during the same period the buyer, seller and other intervening parties, all rained pleadings on each other. Pursuant thereto they also attended depositions and hearings, all of which indicate to us that neither the litigants nor the court were conscious of the omission.
Without further discussion, we hold that the seller did file and serve “(m)any paper(s) in the action” and was therefore entitled to “notice of the application for default”, all in accordance with Rule 1.500(b) Fla.R.Civ.P. (1976). See also Freedman v. Freedman, 235 So. 2d 544 (Fla. 3rd DCA 1970).
Reversed and remanded for further proceedings.
MAGER, C. J., and CROSS, J., concur. . Note the judge granted this motion, not the clerk.
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Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla. 3d DCA 1979)…required notice of application for default having been served upon appellant/defendant. The failure of notice, alone, causes the entrance of default judgment to be improper. See rule 1.500(b), Fla.R.Civ.P.; South Florida Vendorama, Inc. v. Colodny, 348 So. 2d 1212 (Fla.4th DCA 1977); Dade County v. Lambert, 334 So. 2d 844 (Fla.3d DCA 1976); Freedman v. Freedman, 235 So. 2d 544 (Fla.3d DCA 1970). Based upon the foregoing authorities, and in conjunction with the principle that where there has been no trial on…
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Clearvalle, Inc. v. Cohen, 561 So. 2d 1354 (Fla. 4th DCA 1990)…t erroneous. Gonzalez v. Moriyon, 553 So. 2d 249 (Fla. 3d DCA 1989); Connecticut General Dev. Corp. v. Guson, 477 So. 2d 665 (Fla. 5th DCA 1985); Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla. 3d DCA 1979); South Florida Vendorama, Inc. v. Colodny, 348 So. 2d 1212 (Fla. 4th DCA 1977). It is not necessary to discuss appellants’ additional grounds for reversal. REVERSED and REMANDED. DOWNEY and WALDEN, JJ., concur.…
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Rohlfing v. Golding, 412 So. 2d 441 (Fla. 4th DCA 1982)…PER CURIAM. The order denying the appellant’s motion to vacate the default judgment is reversed on the authority of South Florida Vendorama, Inc. v. Colodny, 348 So. 2d 1212 (Fla. 4th DCA 1977). Also see Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla.3d DCA 1977). DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.…
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- Freedman v. Freedman, 235 So. 2d 544 (Fla. 3d DCA 1970)