ONYX FINANCIAL GROUP, INC., INTERCO FUNDING GROUP, INC., RONALD G. WILLIAMS, WALTER S. KULKER, EDWARD KRUGER, APPELLANTS,
v.
INTERNATIONAL WASTE SYSTEMS, INC., APPELLEE
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Default judgment was erroneously entered against defendants for failure to timely obtain counsel where defendants obtained counsel before the default order was entered and the trial court made no finding of intentional disobedience.
A default judgment must be reversed where defendants obtained counsel before the default order was entered, even if not within the prescribed time period, and the court made no finding of intentional disobedience of the court's order.
[1] A default judgment cannot be entered for failure to comply with a court order directing appointment of counsel within a specified time period unless the court finds that…
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Join FLexlaw to unlock all legal intelligenceDefendants in a fraud action failed to comply with a court order requiring them to obtain new counsel within twenty days or announce pro se status. Th…
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PER CURIAM.
This is an appeal by the defendants Onyx Financial Group, Inc., et ah, from a non-final order granting the plaintiff International Waste System’s motion for a default in an action sounding in fraud. The motion for default was granted because the defendants failed to comply with a prior court order which directed that the corporate defendant obtain new counsel within twenty days of the entry of order and that the individual defendants either obtain new counsel or announce they were proceeding pro se within the same twenty-day time period; the court, at the same time, granted a motion to withdraw as counsel filed by defendants’ prior attorney. Because (1) the defendants did, in fact, obtain counsel in the cause prior to the entry of the order granting a default, although not within the prescribed twenty-day time period [counsel filed a notice of appearance forty days from the date of the subject court order], and (2) no finding was made by the court that the defendants intentionally disobeyed the court’s order, we hold, in accord with settled law, that the subject order was erroneously entered. See, e.g., Carillon Corp. v. Devick, 554 So. 2d 630, 632 (Fla. 4th DCA 1989) and cases collected; Fla. R.Civ.P. 1.420, 1.500(c). Accordingly, the order under review is reversed and the cause is remanded to the trial court with directions to deny the plaintiff’s motion for default.
Reversed and remanded.
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Cited By
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Aviad Visoly v. Kluger, Peretz, Kaplan & Berlin, P.A., 707 So. 2d 427 (Fla. 3d DCA 1998)…g upon a finding of willfulness, there will be the added assurance that the trial judge has made a conscious determination that the noncompliance was more than mere neglect or inadvertence.”); Onyx Fin. Group, Inc. v. International Waste Sys., Inc., 619 So. 2d 1036, 1036 (Fla. 3d DCA 1993); Carr v. Dean Steel Bldgs., Inc., 619 So. 2d 392, 394 (Fla. 1st DCA 1993); Carillon Corp. v. Devick, 554 So. 2d 630, 632 (Fla. 4th DCA 1989). An offending party’s mere noneomplianee with a court order is insufficient in and…
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Cherry Roofing Enters., Inc. v. Bader (Fla. 4th DCA 2024)…fault order meant that the roofer had “otherwise defended.” Therefore, the county court was without authority to enter a subsequent default or default final judgment. See Carillon, 554 So. 2d at 632; Onyx Fin. Grp., Inc. v. Int’l Waste Sys., Inc., 619 So. 2d 1036, 1036 (Fla. 3d DCA 1993) (holding that the default was erroneously entered “[b]ecause (1) the defendants did, in fact, obtain counsel in the cause prior to the entry of the order granting a default, although not within the prescribed twenty-day time…
Authorities Cited
- Carillon Corp. v. Seymour Devick and Florence Devick, 554 So. 2d 630 (Fla. 4th DCA 1989)