J.A.R., INC., A FLORIDA CORPORATION, AND CLARENCE E. REYNOLDS, APPELLANTS,
v.
UNIVERSAL AMERICAN REALTY CORPORATION, A FLORIDA CORPORATION, APPELLEE
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In a landlord-tenant dispute, the trial court entered a default judgment against defendants J.A.R., Inc. and Clarence E. Reynolds without proper notice despite defendants having served a timely letter asserting defenses. The appellate court reversed, holding that the defendants' letter constituted sufficient paper to trigger notice requirements under Florida Rule of Civil Procedure 1.500(b), and that a corporation's officer may file an initial pleading on its behalf without being an attorney.
The final default judgment must be reversed and set aside because Florida Rule of Civil Procedure 1.500(b) requires notice of a default application to any party that has filed or served any paper, and defendants' letter constituted such paper. Additionally, an initial pleading filed on behalf of a corporation by a non-attorney officer is not a nullity; it is subject to dismissal only if an attorney does not enter an appearance within a reasonable time after notice of the defect, or if the non-attorney representation occurred with knowledge of impropriety or substantial prejudice to the other party.
[1] A party is entitled to notice of an application for default judgment if they have filed or served any paper in the action.
[2] A default judgment entered without notice to a party who has filed or served a paper in the action must be set aside.
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Civil Procedure 1.500(b) provides that if a party has filed or served "any paper," the party shall be served with notice of an application for default.”
Establishes the mandatory notice requirement that the trial court violated
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Join FLexlaw to unlock all legal intelligenceUniversal American Realty Corporation sought to terminate a lease and accelerate future rentals against J.A.R., Inc. and Reynolds for non-payment of r…
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FERGUSON, Judge.
Defendants J.A.R., Inc. and Clarence E. Reynolds, individually, were served with a summons and complaint in a landlord-ten ant dispute. Plaintiff, Universal American Realty Corporation, sought to terminate the lease for non-payment of rent and to accelerate future rentals for the remaining four-year balance on a five-year lease.1 Within twenty days a letter signed by Reynolds was sent to plaintiffs attorney as a defense to the complaint. The letter stated in part:
Richard A. Friend, Esq.
Sirs:
In defense to case # 85-22884 J.A.R. Inc. and Clarence E. Reynolds. After several attempts to maintain and operate the location and to do as Universal American Realty instructed us we can no longer operate the location. We had no customers, and every time it rained, water blocked the location.
J.A.R. Inc. and Mr. Reynolds can no longer afford to operate.
The locks were changed once and a [sic] eviction Notice was posted. The rent was paid at that point and brought up to date, but due to no customers and no sales we could not reopen and we were notified we were evicted.
C.E. Reynolds
J.A.R. Inc. Almost two weeks after defendants served their “defense” letter on plaintiffs counsel, plaintiff caused the clerk of the court to enter a default without notice to defendants. Plaintiff then filed its motion for entry of final default judgment and affidavits in support thereof without serving them on defendants. The final default judgment awarding $62,377.76 was entered approximately one month after the default was entered by the clerk.
Nine days later defendants, through counsel, filed a notice of appearance and a motion to vacate the final default judgment. The court denied the motion on findings that (1) the letter was a nullity as to the corporate defendant, (2) the letter did not evidence an intent to contest the claim and “did not state defenses thereto,” and (3) defendants’ unsworn motion was insufficient to establish excusable neglect, a meritorious defense, and due diligence.2 We reverse summarily in light of clearly controlling authorities.
Florida Rule of Civil Procedure 1.500(b) provides that if a party has filed or served “any paper,” the party shall be served with notice of an application for default. Reicheinbach v. Southeast Bank, 462 So. 2d 611 (Fla. 3d DCA 1985). Based on a violation of the rule the final default judgment should have been set aside on defendants’ motion without considering whether a meritorious defense was presented. See Cohen v. Barnett Bank of South Florida, 433 So. 2d 1354, 1355 n. 3 (Fla. 3d DCA 1983); Chester, Blackburn & Roder, Inc. v. Márchese, 383 So. 2d 734, 735 n. 3 (Fla. 3d DCA 1980).
Plaintiff argues that even if the default must be set aside as to defendant Reynolds, the paper filed by Reynolds is a nullity as to the corporate defendant because a corporation must be represented in a legal action by an attorney and cannot be represented by a corporate officer. The issue was pointedly decided by this court in Szteinbaum v. Kaes Inversiones y Valores, 476 So. 2d 247 (Fla. 3d DCA 1985), which relied on cases dealing with entry of defaults where a non-attorney appeared on behalf of a defendant corporation. In Szteinbaum we held that an initial pleading entered on behalf of a corporation by a non-attorney officer of the corporation is not a nullity but will be subject to dismissal if an attorney does not enter an appearance within a reasonable time after notice of the defect is given, unless it is shown that the representation occurred with knowledge of its impropriety or the other party was substantially prejudiced by it. Id. at 251. Neither circumstance is demonstrated here.
Reversed and remanded for further proceedings.
. Under the lease the landlord has an option to pursue both remedies. Defendants raise as an issue on the merits that this provision of the lease is contrary to law because a landlord, by electing to terminate a lease which enables it to re-enter the premises for its own purposes, is foreclosed from obtaining judgment for the rent accruing after the termination and re-entry. See Geiger Mutual Agency, Inc., v. Wright, 233 So. 2d 444 (Fla. 4th DCA 1970). We do not reach that issue.
. We are not persuaded that the defense is totally devoid of merit. The paper states that it is a defense to the action, and then sets forth facts suggesting a constructive eviction.
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Citator
Cited By (14 total)
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Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305 (Fla. 3d DCA 1987)…titutes a paper served within the meaning of Rule 1.500(b) and entitles the defendant to notice of default proceedings. Reicheinbach, 462 So. 2d at 612; Beylund v. Gomez, 498 So. 2d 639 (Fla. 3d DCA 1986); J.A.R., Inc. v. Universal Am. Realty Corp., 485 So. 2d 467 (Fla. 3d DCA 1986). This court in earlier opinions has held that failure to provide adequate notice of an application for default, when required by the rules of civil procedure, causes the entrance of the default judgment to be improper. Kiaer v. F…
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Rapid Credit Corp. v. Sunset Park Ctr., Ltd., 566 So. 2d 810 (Fla. 3d DCA 1990)…clear on this issue. Florida Rule of Civil Procedure 1.5.00(b) provides that if a party has filed or served any paper, the party shall be served with notice of the application for default. See J.A.R., Inc. v. Universal American Realty Corporation, 485 So. 2d 467 (Fla. 3d DCA 1986) (a letter asserting an informal defense sent to plaintiff was enough to preclude any entry of default without notice). Rapid’s motion to transfer and consolidate the case, though erroneously filed, should have put Sunset’s attorn…
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EGF Tampa Assocs. v. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988)…a defense to a landlord’s complaint to terminate a lease and accelerate future rentals, was held sufficient to require the tenants to be served [*1321] with notice of application for default judgment. J.A.R., Inc. v. Universal American Realty Corp., 485 So. 2d 467 (Fla. 3d DCA 1986). This was true even though the letter was signed by the corporate officer of the tenant corporation. Id. A defendant’s pro se letter mailed to the plaintiff and not filed in the court was also considered the equivalent to an answe…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)
- Reicheinbach v. Se. Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985)
- Szteinbaum v. Kaes Inversiones y Valores, 476 So. 2d 247 (Fla. 3d DCA 1985)
- Geiger Mut. Agency, Inc. v. Louella F. Wright, 233 So. 2d 444 (Fla. 4th DCA 1970)
- Cohen v. Barnett Bank OF S. Fla., N.A., 433 So. 2d 1354 (Fla. 3d DCA 1983)