ELLIS E. NEDER, JR., APPELLANT,
v.
GREYHOUND FINANCIAL CORP., CHICAGO TITLE INS. CO., APPELLEES
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In this case, the appellate court reversed a default judgment entered against Neder for failing to comply with court orders and appear at trial, holding that the trial court violated procedural rules by entering default without first providing notice and an opportunity to be heard regarding whether the noncompliance was willful or in bad faith.
The trial court violated Rule 1.500(b) by entering a default judgment without notice and an opportunity to be heard regarding whether Neder's failure to comply was willful or in bad faith. Additionally, the record does not support a finding that the damages were liquidated, and if the default judgment is upheld on remand, Neder must be given the opportunity to defend on the issue of damages.
[1] A trial court may not enter a default judgment for violation of a court order without prior notice and an opportunity to be heard on the issue of willfulness or bad faith…
[2] A party's failure to comply with court orders does not obviate the requirement of notice before a default judgment can be entered.
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Join FLexlaw to unlock all legal intelligence“the trial court may not enter a default judgment for violation of a discovery order without notice and an opportunity to be heard on the question of whether the failure was willful or in bad faith”
Establishes the core procedural requirement that notice and hearing are mandatory before default judgment can be entered for noncompliance
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Join FLexlaw to unlock all legal intelligenceNeder failed to comply with multiple pretrial court orders and failed to appear at trial. The trial court entered a default judgment against him witho…
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KAHN, Judge.
Appellant, Ellis E. Neder, contends that the trial court violated Rule 1.500(b), Florida Rules of Civil Procedure, by entering a default and final judgment against him without prior notice after he failed to comply with court orders and failed to appear on the trial date.1 For a party to sit back, do nothing and then seek relief, asserting that he lacked notice of the consequences of his actions, is repugnant to us.
However, Florida courts have previously held that the trial court may not enter a default judgment for violation of a discovery order without notice and an opportunity to be heard on the question of whether the failure was willful or in bad faith. See Sizemore v. Ray Gunter Trucking, Inc., 524 So. 2d 717 (Fla. 1st DCA 1988); Sunstream Jet Center, Inc. v. Lisa Leasing Corp., 423 So. 2d 1005 (Fla. 4th DCA 1982); Owens-Illinois, Inc. v. Lewis, 260 So. 2d 221 (Fla. 1st DCA 1972).
Although the order which appellant failed to comply with threatened dismissal for noncompliance, notice must still be given. Sizemore; Owens-Illinois. We must remand this case for a hearing after notice to appellant to determine whether failure to comply resulted from such willfulness or bad faith as would justify the sanction of default.
The record will not support the trial court’s finding that the damages were liquidated. This was essentially a proceeding to recover indebtedness remaining after a foreclosure sale. The amount of the successful sale bid does not render the amount of the deficiency liquidated, since other evidence of value may be received. Merrill v. Nuzum, 471 So. 2d 128 (Fla. 3d DCA 1985).
We also note that recovery against Neder was based upon alleged fraud and that nowhere in the complaint or pleadings was the amount of damages set out. If on remand the trial court determines that the default judgment should stand, appellant must be given the opportunity to defend on the issue of damages. Fla.R.Civ.P. 1.440(c); See Sunstream, 423 So. 2d at 1007; Greenwood v. Nicklaus, 527 So. 2d 964 (Fla. 5th DCA 1988); Calder v. McNess, 427 So. 2d 393 (Fla. 4th DCA 1983).
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
ERVIN and WEBSTER, JJ., concur. . Appellant's multiple violations of a pretrial order culminated in his failure to appear at trial. Rather than simply proceeding to trial, appellee elected to seek sanctions, resulting in a default judgment for substantial money damages.
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Int'l Energy Corp. v. Darrel Hackett and Ralph Dwake, 687 So. 2d 941 (Fla. 3d DCA 1997)…); Powers v. Gentile, 662 So. 2d 374, 375 (Fla. 5th DCA 1995); Brooks v. Ocean Village Condominium Ass’n, Inc., 656 So. 2d 275, 276 (Fla. 3d DCA 1995); Zeigler v. Huston, 626 So. 2d 1046, 1048 (Fla. 4th DCA 1993); Neder v. Greyhound Financial Corp., 592 So. 2d 1218, 1218 (Fla. 1st DCA 1992); Clearvalle, Inc. v. Cohen, 561 So. 2d 1354, 1354 (Fla. 4th DCA 1990). Moreover, any default entered in violation of the due process notice requirement of Rule 1.500 must be set aside without any regard as to whether a meri…
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Hendrix v. Dep't Stores Nat'l Bank, 177 So. 3d 288 (Fla. 4th DCA 2015)…ly listed default as a possible sanction for noncompliance, notice and opportunity to be heard must still be given to the defending party for a determination of whether the noncompliance was willful or in bad faith.”); Neder v. Greyhound Fin. Corp., 592 So. 2d 1218, 1218 (Fla. 1st DCA 1992) (“Florida courts have previously held that the trial court may not enter a default judgment for violation of a discovery order without notice and an opportunity to be heard on the question of whether the failure was willful…
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Domenic A. Franchi v. Myron Shapiro and Jeffrey B. Shapiro, 650 So. 2d 161 (Fla. 3d DCA 1995)…ed). Before this ultimate sanction can be entered, however, a party must be given notice and an opportunity to be heard. Wildwood Properties, Inc. v. Archer of Vero Beach, Inc., 621 So. 2d 691, 692 (Fla. 4th DCA 1993); Neder v. Greyhound Fin. Corp., 592 So. 2d 1218, 1218 (Fla. 1st DCA 1992); Austin v. Papal, 464 So. 2d 1338, 1339 (Fla. 2d DCA 1985); Kuechenberg v. Creative Interiors, Inc., 424 So. 2d 145, 146 (Fla. 4th DCA 1982); Owens-Illinois, Inc. v. Lewis, 260 So. 2d 221, 226 (Fla. 1st DCA 1972). This oppo…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Owens-Illinois, Inc. v. Lewis, 260 So. 2d 221 (Fla. 1st DCA 1972)
- Merrill v. Nuzum, 471 So. 2d 128 (Fla. 3d DCA 1985)
- Henriquez v. State, 423 So. 2d 1005 (Fla. 3d DCA 1982)
- Calder v. McNESS, 427 So. 2d 393 (Fla. 4th DCA 1983)
- Sunstream JET Ctr., Inc. v. Lisa Leasing Corp. & United States Fire Ins. Co., 423 So. 2d 1005 (Fla. 4th DCA 1982)
- Bell v. Fla. Ins. Guar. Ass'n, 524 So. 2d 717 (Fla. 1st DCA 1988)
- Greenwood v. Nicklaus, 527 So. 2d 964 (Fla. 5th DCA 1988)