WARREN CROWDER, APPELLANT,
v.
OROWEAT FOODS COMPANY, GARY OTTERBACH, CLAUDE GUYARD AND ROBERT EISMAN, APPELLEES

Fla. 2d DCA | 1984-04-04
No. 83-799
HOBSON, A.C.J., and CAMPBELL, J„ concur.
447 So. 2d 1038 Florida District Court of Appeal, Second District (1984) Positive Treatment
Cited by 7 cases

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Synopsis

Warren Crowder appealed a default judgment and involuntary dismissal of his counterclaim entered by the trial court against him in a business sale dispute with Oroweat Foods Company. The appellate court reversed, holding that Crowder's timely service of an answer, counterclaim, and motion to dismiss prevented entry of default, and that the involuntary dismissal was improper because it lacked adequate notice and an antecedent hearing.


Holding

The default judgment was improper because Crowder served an answer, counterclaim, and motion to dismiss before default was entered, thereby preventing entry of default under Florida Rule of Civil Procedure 1.500(c). The involuntary dismissal of the counterclaim was also improper because the trial court's conditional order did not sufficiently warn Crowder that failure to deposit funds would result in automatic dismissal, and dismissal occurred without a proper antecedent hearing and adequate opportunity for Crowder to present arguments on the matter.


Headnotes

[1] A party may plead or otherwise defend at any time before a default is entered, thereby preventing the entry of a default judgment.

[2] An involuntary dismissal of a counterclaim is improper without a proper antecedent hearing and sufficient warning that dismissal would be automatic.

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Key Quotes

“Florida Rule of Civil Procedure 1.500(c) allows a party to "plead or otherwise defend at any time before default is entered." Crowder served an answer, counterclaim and motion to dismiss before a default was entered, thereby preventing entry of the default judgment.”

Establishes the controlling rule preventing entry of default when responsive pleadings are timely filed.

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Facts & Procedural History

Warren Crowder sold a business to Oroweat Foods Company. Oroweat sought a default judgment based on Crowder's failure to file a responsive pleading to…

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Opinion of the Court
RYDER, Judge.

RYDER, Judge.

This case arises from the sale of a business by Warren Crowder to Oroweat Foods Company (Oroweat). Ultimately, the trial court entered a final default judgment in favor of Oroweat, and a final judgment involuntarily dismissing Crowder’s counterclaim. We reverse.

Oroweat sought a default judgment based upon Crowder’s failure to file a responsive pleading to Oroweat’s amended complaint. Before a hearing was held on the motion for default judgment, Crowder served an answer denying liability, a counterclaim, and a motion to dismiss one count of the amended complaint.

Oroweat filed several motions including a motion for involuntary dismissal of the counterclaim. All motions were heard by the trial court in February 1983.

The trial court entered a “partial summary judgment” and denied the motions for default and involuntary dismissal “upon the condition that Defendant, Warren Crowder, shall deposit with the Clerk of this Court the sum of $33,525.99 within ten (10) days of the date of this Order.” The court indicated: “If Defendant fails to deposit said sum, the Court will reconsider the motions of plaintiff for default and involuntary dismissal.” (emphasis added).

Subsequently, Crowder filed a motion for rehearing of the trial court’s “partial summary judgment”, asserting that the form of the order was incorrect and misleading, and that the provision directing Crowder to deposit funds with the clerk was not authorized by law.

Oroweat filed a “renewed motion for involuntary dismissal and default” based on Crowder’s failure to deposit funds in the registry of the court. It was asserted that the motion for rehearing filed by Crowder “does not state the time for compliance with the Court’s request to deposit the money with the Clerk.”

Although a hearing was set for the motion for rehearing and the renewed motion for default and involuntary dismissal, the trial court cancelled the hearing. The trial court entered final judgment granting Oroweat’s renewed motion and dismissing Crowder’s counterclaim. Crowder timely filed his notice of appeal.

Entry of the default against Crow-der was improper. Florida Rule of Civil Procedure 1.500(c) allows a party to “plead or otherwise defend at any time before default is entered.” Crowder served an answer, counterclaim and motion to dismiss before a default was entered, thereby preventing entry of the default judgment. Board of Regents v. Hardin, 393 So. 2d 1134 (Fla. 1st DCA 1981); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980). Consequently, we hereby vacate the default judgment.

The involuntary dismissal of appellant’s counterclaim must also be reversed. Following the February 1983 hearing, the trial court ordered that it would reconsider the motions for default and involuntary dismissal if Crowder failed to deposit funds with the court. This order was insufficient to convey notice to Crowder that the failure to deposit the funds would result in an automatic involuntary dismissal of his counterclaim without the opportunity to present arguments concerning his failure to deposit the funds or the propriety of dismissal for that failure. Hence, involuntary dismissal of Crowder’s counterclaim without a proper antecedent hearing and without sufficient warning that dismissal would be automatic, was improper. See Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA), petition for review denied, 424 So. 2d 763 (Fla.1982); Fla.R.Civ.P. 1.420(b). See also Shannon Motors, Inc. v. Vans & Vehicles, Inc., 423 So. 2d 551 (Fla. 1st DCA 1982).

Other arguments presented by the parties have been considered and do not require further discussion herein. In light of our conclusion, the decision below is REVERSED and this case REMANDED for further proceedings.

HOBSON, A.C.J., and CAMPBELL, J„ concur.


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Citator

Cited By

  • Gibraltar Serv. Corp. v. Lone & Assocs., Inc., 488 So. 2d 582 (Fla. 4th DCA 1986)
    …in the mail on the same day that the clerk entered the default, the default should be set aside. ANSTEAD, J., concurs. DELL, J., concurs specially with opinion. . To support their reasoning above, appellants cite Crowder v. Oroweat Foods Company, 447 So. 2d 1038 (Fla. 2d DCA 1984), Florida Rule of Civil Procedure 1.090(e) and Trawick’s Florida Practice and Procedure § 8-23. The Oroweat citation must be for the principle that if a responsive pleading has been served before the default has been entered, the d…
  • Freeman v. Al Mintz, 523 So. 2d 606 (Fla. 3d DCA 1988)
    …counterclaim for foreclosure. We reverse. The record shows that the answer to the counterclaim had been filed before the court heard Mintz’s motion for a default judgment. A judgment for default was therefore improper. Crowder v. Oroweat Foods Co., 447 So. 2d 1038 (Fla. 2d DCA 1984) (where answer was served before default was entered default judgment was improper); Fla.R.Civ.P. 1.500(c) (“A party may plead or otherwise defend at any time before default is entered.”). The order granting Coldwell Banker’s moti…
  • EGF Tampa Assocs. v. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988)
    …entered. Fla.RXiv.P. 1.500(c); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980); Freedman v. Freedman, 235 So. 2d 544 (Fla. 3d DCA 1970), cert. denied, 241 So. 2d 859 (Fla.1970). See also Crowder v. Oroweat Foods Co., 447 So. 2d 1038 (Fla. 2d DCA 1984).…

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