WALTER LEE ALLS, A MINOR, BY HIS FATHER AND NEXT FRIEND, MONROE ALLS, AND MONROE ALLS, INDIVIDUALLY, APPELLANTS,
v.
7-ELEVEN FOOD STORES, INC., AND CRYSTAL SPRINGS WATER COMPANY, A DIVISION OF BORDEN, INC., APPELLEES
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A minor plaintiff sued 7-Eleven and Crystal Springs Water Company for injuries from a broken glass bottle at a 7-Eleven store. After 7-Eleven defaulted and a default judgment was entered, Crystal Springs obtained summary judgment on a common liability defense. The court affirmed 7-Eleven's subsequent summary judgment, holding that a defaulting defendant may benefit from a common defense raised by a co-defendant.
A defaulting defendant may obtain summary judgment on a defense common to all defendants, and a trial judge properly has authority to enter summary judgment for a defaulting defendant when it is apparent that the plaintiff can recover no damages against that defendant.
[1] A defaulting defendant may take advantage of a defense that is common to all defendants.
[2] A trial court may enter a summary judgment for a defaulting defendant if it is apparent that the plaintiff can recover no damages against that defendant.
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Join FLexlaw to unlock all legal intelligence“a defaulting defendant may take advantage of a defense which is common to all”
Establishes the primary rule allowing defaulting defendants to benefit from common defenses
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Join FLexlaw to unlock all legal intelligenceWalter Lee Alls, a minor, was injured when he picked up a glass bottle that broke at a 7-Eleven store. 7-Eleven failed to timely respond to the lawsui…
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PER CURIAM.
The appellants seek review of a summary final judgment in favor of 7-Eleven Food Stores, Inc. Suit was filed by the appellants against two separate defendants, 7-Eleven and Crystal Springs Water Company, seeking recoyery of damages for personal injuries sustained as the result of a glass bottle break at a 7-Eleven store when the minor appellant picked it up.
7-Eleven failed to timely respond. A default judgment was entered against it. After its motion to vacate default was denied, 7-Eleven sought review up through the Supreme Court of Florida which denied its petition for certiorari. 7-Eleven Food Stores, Inc. v. Alls, 308 So. 2d 660 (Fla. 3d DCA 1975), certiorari denied 322 So. 2d 925 (Fla.1975). While 7-Eleven’s appeals were proceeding, the other defendant, Crystal Springs, made a motion for summary judgment which was granted in its favor.1 Based on that happening, 7-Eleven filed a motion for summary judgment asserting that it too was entitled to summary judgment on the liability defense raised by the other defendant, which was granted.
This appeal ensued, the appellants contending that notwithstanding the favorable summary judgment for Crystal Springs,2 a default having been entered against 7-Eleven, the trial judge was without authority to thereafter enter a summary judgment in 7-Eleven’s favor. We disagree.
First, a defaulting defendant may take advantage of a defense which is common to all. Edwards v. Schilling, 14 Fla.Supp. 7 (Fla. 4th Cir. 1959); 47 Am.Jur.2d, Judgments, § 1160; 19 Fla.Jur., Judgments and Decrees, § 314 (1978 Supp.); Anno. 78 A.L.R. 938; Compare: Blatch v. Wesley, 238 So. 2d 308 (Fla. 3d DCA 1970). Second, it would be proper for a trial judge to enter a summary judgment for a defaulting defendant when it is apparent that the plaintiff can recover no damages against the defaulting defendant. Fields v. Quillian, 74 So. 2d 230 (Fla.1954); Andrews v. Goetz, 104 So. 2d 653 (Fla. 1st DCA 1958); Nielsen v. City of Sarasota, 110 So. 2d 417 (Fla. 2d DCA 1959). It is, of course, a principle of appellate law that a trial court can be right for any reason which appears in the record. Cohen v. Mohawk, 137 So. 2d 222 (Fla.1962); Aetna Insurance Company v. Settembrino, 324 So. 2d 113 (Fla. 3d DCA 1975); Board of County Commissioners of Metropolitan Dade County v. Lowas, Fla.App., 348 So. 2d 13.
Therefore, for the reasons above stated, the summary judgment here under review be and the same is hereby affirmed.
Affirmed.
. The defense of Crystal Springs on the question of liability was that the plaintiff was the sole proximate cause of the accident and consequential injuries.
. No appeal was taken by the plaintiffs from the summary judgment finding no liability on the part of Crystal Springs.
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Pro-Art Dental LAB, Inc. v. V-Strategic Grp., LLC, 986 So. 2d 1244 (Fla. 2008)…efault judgment. On entry of default, the defaulting party admits only the well-ple[d] factual allegations of the complaint against it. The defaulting party does not admit conclusions of law.” (citation omitted)); Alls v. 7-Eleven Food Stores, Inc., 366 So. 2d 484, 486 (Fla. 3d DCA 1979) ("[I]t would be proper for a trial judge to enter a summary judgment for a defaulting defendant when it is apparent that the plaintiff can recover no damages against the defaulting defendant.”). A related issue also remains…
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Sybert v. Combs, 555 So. 2d 1313 (Fla. 5th DCA 1990)…on, Inc. v. Koch, 480 So. 2d 131, 133 (Fla. 2d DCA 1985), rev. den., 491 So. 2d 279 (Fla.1986); Citizens Federal S & L of St. Lucie County v. Loeb Rhoades Hornblower & Co., 473 So. 2d 679, 683 (Fla. 4th DCA 1984); Alls v. 7-Eleven Food Stores, Inc., 366 So. 2d 484 (Fla. 3d DCA 1979); Stone v. Rosen, 348 So. 2d 387 (Fla. 3d DCA 1977).…
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Days Inns Acquisition Corp. v. Hutchinson, 707 So. 2d 747 (Fla. 4th DCA 1997)…luded from proceeding under Florida Rule of Civil Procedure 1.540(b)(5) to set aside the default judgment in the event that the other defendants prevailed on the merits. Id., 519 So. 2d at 644. Prior to Behar, in Alls v. 7-Eleven Food Stores, Inc., 366 So. 2d 484, 485 (Fla. 3d DCA 1979), the third district held that a “defaulting defendant may take advantage of a defense which is common to all.” The plaintiff in Alls sued 7-Eleven and Crystal Springs Water for recovery of damages suffered as a result of a gl…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Cohen v. Mohawk, Inc., 137 So. 2d 222 (Fla. 1962)
- Fields v. Quillian, 74 So. 2d 230 (Fla. 1954)
- Bd. OF Cnty. Comm'rs OF Metro. Dade Cnty. & Dade Cnty. v. Lowas, 348 So. 2d 13 (Fla. 3d DCA 1977)
- Andrews v. Goetz, 104 So. 2d 653 (Fla. 1st DCA 1958)
- Nielsen v. City OF Sarasota, 110 So. 2d 417 (Fla. 2d DCA 1959)
- AETNA Ins. Co. v. Settembrino, 324 So. 2d 113 (Fla. 3d DCA 1975)
- Booker T. Washington Barker v. State, 238 So. 2d 308 (Fla. 2d DCA 1970)
- Stafford Blatch v. Wesley, 238 So. 2d 308 (Fla. 3d DCA 1970)
- Niagara Fire Ins. Co. v. Allied Elec. Co., 322 So. 2d 925 (Fla. 1975)
- Weary v. Hughes Supply, Inc., 322 So. 2d 925 (Fla. 1975)