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757 So. 2d 570

TLC Trust v. Sender

District Court of Appeal of Florida · decided 2000-04-26

Cited by 2 later decisions — most recently March 2016

2 state decisions

Key passage — most relied on by later courts

“(b) 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 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 with notice of the application for default. (c) Right to Plead. A party may plead or otherwise defend at any time before default is entered. If a party in default files any paper after the default is entered, the clerk shall notify the party of the entry of the default. The clerk shall make an entry on the progress docket showing the notification.”

quoted by 2 later decisions, including Baldomiano Rangel v. Midfirst Bank, Francisco Tapia, Elia Puga, Jose Andres Sanchez, etc., 986 So. 2d 1244 - Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC

Relies on 626 So. 2d 1046 - Zeigler v. Huston · Graves v. Giordano

Good law ✅— No negative treatment on recordhow we know

Decided 2000-04-26

View the full empirical analysis of this case →

HOLMES, ILONA, Associate Judge.

¶1Appellants TLC Trust (TLC) and Jeff Brown (Brown) appeal from the trial court’s entry of a default final judgment. We reverse as to Brown and remand for further proceedings.

¶2In October 1991, Appellee, Shirley Sender (Sender), and Brown entered into a purchase option agreement for the purchase of land. According to the agreement, in order to exercise the option, Brown was to pay the property taxes and all county assessments for a full year or tender the full purchase price. In return, Sender would execute a warranty deed transferring the property to Brown. In the event of a breach, the full purchase price would be due.

¶3Brown defaulted and Sender paid all taxes and assessments for the years 1992 and 1993. In December 1993, Sender executed a warranty deed transferring the property to TLC. According to Sender, there was an agreement that TLC would not record the deed until Brown paid the delinquent taxes. Notwithstanding this agreement, TLC recorded the warranty deed. Sender then sued both TLC and *571Brown to quiet title to the property. Sender served Brown personally and also served Brown with TLC’s summons.

¶4Brown filed a motion to dismiss the complaint, which was granted by the trial court. The court, however, granted Sender twenty (20) days to file an amended complaint. TLC and Brown were given ten (10) days to file an answer to the amended complaint. Sender filed her amended complaint on February 6, 1998. In March 1998, Sender moved for and obtained a default against TLC. Shortly thereafter, Brown filed an answer asserting several affirmative defenses as well as a counterclaim against Sender.

¶5In August 1998, Sender moved for, and the trial court entered, a default final judgment quieting title to the property against the claims of TLC and Brown. Brown subsequently filed a motion for rehearing, as well as a motion to set aside the default final judgment.

¶6On appeal, TLC and Brown contend that the trial court erred in entering a default judgment against Brown. Florida Rule of Civil Procedure 1.500(c) provides that “[a] party may plead or otherwise defend at any time before default is entered.” A default is, therefore, improper when a party has filed a responsive pleading prior to the entry of default. See Graves v. Giordano, 590 So.2d 1113 (Fla. 4th DCA 1991). The record reflects that at the time the default judgment was entered, Brown’s answer and other pleadings were already filed.

¶7In order to enter a default after a party has appeared in the action by filing or serving any papers, notice of the application for default must be served. See Zeigler v. Huston, 626 So.2d 1046, 1048 (Fla. 4th DCA 1993); Fla. R. Civ. P. 1.500(b). The record reflects that Brown did not have notice of the application for default as required by rule 1.500. ' The entry of default judgment against Brown was, therefore, inappropriate.

¶8As to the default judgment against TLC, we find that TLC waived this issue by failing to challenge the default in the trial court. The record reflects that TLC did not file a responsive pleading prior to the entry of default, nor did TLC move to set aside the default judgment. Further, there is nothing in the record to indicate that the pleadings filed by Brown are also the pleadings of TLC.

¶9TLC and Brown also contend that service of process on TLC was improper. We find that TLC and Brown failed to preserve this issue for appellate review. Thus, this court may not consider it on direct appeal.

¶10Accordingly, we reverse the default judgment as to Brown, but affirm as to TLC. This cause is remanded for further proceedings' consistent with this opinion.

GUNTHER and FARMER, JJ, concur.
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