TURNER PROPERTIES, INC., A NEW YORK CORPORATION, BETSY LEE TURNER, INDIVIDUALLY AND IVAN GATI, INDIVIDUALLY, APPELLANTS,
v.
ARTHUR MARCHETTA, CHARTER INVESTMENTS REALTY, INC., A FLORIDA CORPORATION, AND JOSEPH WEISELBERG, APPELLEES
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Turner Properties and individual defendants appealed a default judgment entered against them when they failed to appear at trial. The Florida Third District Court of Appeal reversed, holding that a default based solely on failure to appear at trial is improper and that sanctions imposed via oral motion without prior notice and opportunity to be heard violate due process.
A default cannot be entered based merely on a defendant's failure to appear at trial, as nonappearance does not relieve the plaintiff of its obligation to introduce evidence on liability. Additionally, sanctions cannot be imposed based on an oral motion made at trial without the defendant having prior notice or opportunity to be heard.
[1] A default judgment cannot be entered against a defendant solely for failing to appear at trial; the plaintiff must still present evidence on liability.
[2] A court may not impose sanctions against a party without providing prior notice and an opportunity to be heard.
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Join FLexlaw to unlock all legal intelligence“Nonappearance by defendants does not relieve the plaintiff of its obligation to introduce evidence on liability, and is not a basis for entry of a default.”
Establishes the core holding that failure to appear cannot support a default judgment
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Join FLexlaw to unlock all legal intelligenceDefendants Turner Properties, Inc., Betsy Turner, and Ivan Gati failed to appear at trial. The trial court entered a default against defendants on lia…
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COPE, Judge.
Turner Properties, Inc., Betsy Turner and Ivan Gati, defendants below, appeal a final judgment entered in favor of plaintiffs. We reverse.
When the case was called for trial, defendants failed to appear.1 The court entered a default against them on liability and struck their pleadings. The case went to the jury on damages only.
The default cannot be sustained on the basis of the failure to appear at trial. Nonappearance by defendants does not relieve the plaintiff of its obligation to introduce evidence on liability, and is not a basis for entry of a default. Delancer v. Advanced Mortgage Investment Co., 546 So. 2d 130 (Fla. 3d DCA1989); Cluett v. Krystyniak, 532 So. 2d 739 (Fla. 2d DCA1988); Belcher v. Ferrara, 511 So. 2d 1089 (Fla. 3d DCA), appeal after remand, 517 So. 2d 47 (Fla. 3d DCA1987), review denied, 528 So. 2d 1181 (Fla.1988); Stern v. Commercial Constr. Corp., 268 So. 2d 549, 550-51 (Fla. 3d DCA1972), cert. denied, 276 So. 2d 166 (Fla.1973); Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA1967).
The stated basis for entering the default, however, was as a sanction. According to the court’s written order, the sanctions were entered based on an ore tenus motion made by plaintiff at trial, as well as a previous written motion for default.
As to the oral motion at trial, defendants had no prior notice or opportunity to be heard. That being so, it was error to enter sanctions. See Lazare v. Weiss, 437 So. 2d 211, 212 (Fla. 3d DCA1983); Sunstream Jet Center, Inc. v. Lisa Leasing Corp., 423 So. 2d 1005, 1006-07 (Fla. 4th DCA1982); see also Belcher v. Ferrara, 511 So. 2d at 1091. It is plain from the trial court’s order that the basis for its ruling was the oral motion.2 The order entering default and striking pleadings must be reversed. This necessitates reversal of the final judgment as well, as it was based on the default on liability. This ruling is without prejudice to the court’s consideration of a motion for sanctions on proper notice and an opportunity to be heard.3
We need not reach the remaining point on appeal.4
The final judgment is reversed and the cause remanded with directions to vacate the default and reinstate defendants’ pleadings, and for further proceedings consistent herewith.
. There is a dispute about notice which need not be discussed here.
. The written motion was essentially for failure to plead, and was largely mooted when substitute counsel appeared and filed an answer prior to the written motion’s being heard pretrial. The court deferred ruling on the written motion. The written motion would not, standing alone, support the extreme remedy of striking defendant’s pleadings.
. We express no opinion on the merits of any such motion or the appropriate remedy therefor. . We would note in passing that this case was not at issue when it was set for trial. There was no timely objection made, however, which would have preserved this point for appeal.
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Powers v. Gentile, 662 So. 2d 374 (Fla. 5th DCA 1995)…re Air, Inc., 428 So. 2d 294 (Fla. 3d DCA 1983). Absent the entry of a default after appropriate notice, or a trial after appropriate notice and the taking of testimony and evidence, this judgment cannot stand. Turner Properties, Inc. v. Marchetta, 607 So. 2d 506 (Fla. 3d DCA 1992). We reverse and remand for a trial on all issues. REVERSED and REMANDED. GOSHORN and THOMPSON, JJ., concur.…
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Renia T. Maranto v. Dearborn, 687 So. 2d 940 (Fla. 3d DCA 1997)…was entered without appellee providing any proof of his claim on the contested [*941] issues in the pleadings. We have found the entry of a default judgment under such circumstances to be an abuse of discretion. Turner Properties, Inc. v. Marchetta, 607 So. 2d 506, 507 (Fla. 3d DCA 1992); Cluett v. Krystyniak, 532 So. 2d 739, 739 (Fla. 2d DCA 1988) (deciding where appellants intentionally failed to appear at trial, trial court erred in entering default judgments where pleadings set forth disputed issues as to…
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Molina v. Watkins, 824 So. 2d 959 (Fla. 3d DCA 2002)…abused its discretion when it entered a final default judgment against FCA prior to submitting any issues to the jury where all parties had demanded a jury trial and no party had withdrawn its demand. See, e.g., Turner Properties, Inc. v. Marchetta, 607 So. 2d 506, 507 (Fla. 3d DCA 1992) (non-appearance by defendants does not relieve plaintiff of its obligation to introduce evidence on liability, and is not basis for entry of default); Cluett v. Krystyniak, 532 So. 2d 739, 739 (Fla. 2d DCA 1988) (trial court…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967)
- Belcher v. Eileen and Charles Ferrara, 511 So. 2d 1089 (Fla. 3d DCA 1987)
- Emil Aescht v. Zach Aubrey Weaver & the Federated Mut. Implement & Hardware Ins. Co., 268 So. 2d 549 (Fla. 2d DCA 1972)
- Henriquez v. State, 423 So. 2d 1005 (Fla. 3d DCA 1982)
- Cluett v. Krystyniak, 532 So. 2d 739 (Fla. 2d DCA 1988)
- French v. State, 276 So. 2d 166 (Fla. 1973)
- Sunstream JET Ctr., Inc. v. Lisa Leasing Corp. & United States Fire Ins. Co., 423 So. 2d 1005 (Fla. 4th DCA 1982)
- Calafell v. Kinstler, 437 So. 2d 211 (Fla. 3d DCA 1983)
- Cavanaugh v. Etta Reuben, 437 So. 2d 211 (Fla. 3d DCA 1983)
- Arthree, Inc. v. Kaskel, 276 So. 2d 166 (Fla. 1973)