JON SCHUYLER BROOKS, APPELLANT,
v.
OCEAN VILLAGE CONDOMINIUM ASSOCIATION, INC., APPELLEE
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Brooks appeals a default judgment entered by a trial court in a condominium lien foreclosure action. The appellate court reverses because the association sought entry of default ex parte despite Brooks having filed a responsive paper, thereby violating Florida Rule of Civil Procedure 1.500(b).
The default judgment must be reversed because the association violated Florida Rule of Civil Procedure 1.500(b) by seeking entry of default ex parte. Since Brooks had filed or served a paper in the action (his letter responding to the complaint), he was entitled to notice of the application for default, and the ex parte application was improper.
[1] A party who has filed or served any paper in an action must be served with notice of an application for default.
[2] A letter detailing a party's version of facts regarding their account and including a replacement payment constitutes a 'paper' for purposes of the rule requiring notice…
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Join FLexlaw to unlock all legal intelligence“when a defending party "has filed or .served any paper in the action, that party shall be served with notice of the application for default." (Emphasis added)”
The court cites the governing rule of procedure that the association violated by making an ex parte application for default
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Join FLexlaw to unlock all legal intelligenceBrooks owned a condominium unit at Ocean Village Condominium. The association served Brooks with a foreclosure complaint on July 2, 1992. On July 3, 1…
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PER CURIAM.
This case is before us on remand from Ocean Village Condominium Association, Inc. v. Brooks, 649 So. 2d 230 (Fla.1995), quashing Brooks v. Ocean Village Condominium Association, Inc., 625 So. 2d 111 (Fla. 3d DCA 1993). The Florida Supreme Court’s opinion resolves the jurisdictional question which was the basis of this court’s earlier decision, and remands for further proceedings in this court. 649 So. 2d at 231; see also 625 So. 2d at 112 (leaving open Brooks’ alternative arguments for relief).
Brooks is the owner of a condominium unit at Ocean Village Condominium. Appellee Ocean Village Condominium Association, Inc., filed a complaint to foreclose a claim of lien for condominium assessments under section 718.116, Florida Statutes (1991). The trial court entered a default and default judgment. Brooks moved to set aside the default and the judgment entered thereon. The motion was denied, and Brooks has appealed.
We conclude that the motion to set aside the default should have been granted. The Association served Brooks with process on July 2, 1992. On July 3, 1992 Brooks wrote to the manager of the condominium association detailing his version of the facts regarding his account for maintenance fees. The letter asserts that Brooks had paid all of the fee statements, but that one of the cheeks had evidently miscarried. He sent with the letter a replacement cheek. A copy of the letter was sent to the office of counsel representing the condominium association.1
On August 17, 1992 the association transmitted a motion and order for entry of default to the trial court. This was an ex parte application for entry of default.
The trial court entered an order of default on August 21, 1992. On August 21, the motion for default and the default order were served by mail on Brooks, who resides in New York. Thereafter, final judgment was entered in favor of the association, following which Brooks moved to set aside the default and default judgment.
We reverse because the application for default should not have been made ex parte. Florida Rule of Civil Procedure 1.500(b) provides that when a defending party “has filed or .served any paper in the action, that party shall be served with notice of the application for default.” (Emphasis added). Under the decided cases, the letter sent by Brooks in response to the complaint was a “paper” for purposes of Rule 1.500(b). Zephyr Aviation Servs., Inc. v. Amerijet Int’l, Inc., 631 So. 2d 371, 372 (Fla. 4th DCA 1994); Gulf Maintenance & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813, 816 (Fla. 1st DCA 1989); EGF Tampa Assoc’s v. Edgar V. Bohlen, G.F.G.M. A.G., 532 So. 2d 1318, 1321 (Fla. 2d DCA 1988); Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305, 1307 (Fla. 3d DCA 1987), review denied, 525 So. 2d 877 (Fla.1988); Reicheinbach v. Southeast Bank, N.A, 462 So. 2d 611, 612 (Fla. 3d DCA 1985); Terino Bros., Inc. v. Airey, 364 So. 2d 768, 770 (Fla. 2d DCA 1978); cf. Picchi v. Barnett Bank of South Florida, N.A, 521 So. 2d 1090, 1091 (Fla.1988) (effect of filing notice of appearance). The order denying relief from the default and default judgment must be reversed. See Reicheinbach, 462 So. 2d at 612; Kiaer v. Friendship, Inc., 376 So. 2d 919, 922 (Fla. 3d DCA 1979); Fla.R.Civ.P. 1.500(d).
Reversed and remanded.2
. There was also an oral agreement for an extension of time to answer the complaint. However, the parties' affidavits are in conflict regarding the length of the extension of time. We need not explore that issue in order to resolve this appeal.
. Brooks has asserted in this court that the notice of intent to foreclose the lien was deficient under subsection 718.116(6), Florida Statutes (1991). We express no view on the merits of that argument, which is a matter that should be asserted by way of defense below.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Int'l Energy Corp. v. Darrel Hackett and Ralph Dwake, 687 So. 2d 941 (Fla. 3d DCA 1997)…h party without prior notice of the application for default. Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996); 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…
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Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170 (Fla. 1st DCA 1996)…ve relief is sought has appeared in an action by filing or serving papers, that party shall be served with notice of the application for default as required by Florida Rule of Procedure 1.500(b). See Brooks v. Ocean Village Condominium Assoc., Inc., 656 So. 2d 275 (Fla. 3d DCA 1995); Mesones v. Jabbour, 639 So. 2d 1000 (Fla. 4th DCA 1994); Zeigler v. Huston, 626 So. 2d 1046 (Fla. 4th DCA 1993); Clark v. Perlman, 599 So. 2d 710 (Fla. 1st DCA 1992); Clearvalle, Inc. v. Cohen, 561 So. 2d 1354 (Fla. 4th DCA 1990)…
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Renia T. Maranto v. Dearborn, 687 So. 2d 940 (Fla. 3d DCA 1997)…h party without prior notice of the application for default. Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996); 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). Any default e…
Authorities Cited
- Gulf Maint. & Supply, Inc. v. Barnett Bank OF Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989)
- Reicheinbach v. Se. Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985)
- Blaise Picchi v. Barnett Bank OF S. Fla., N.A., 521 So. 2d 1090 (Fla. 1988)
- Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla. 3d DCA 1979)
- Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305 (Fla. 3d DCA 1987)
- EGF Tampa Assocs. v. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988)
- Terino Bros., Inc. v. Airey, 364 So. 2d 768 (Fla. 2d DCA 1978)
- Brooks v. Ocean Vill. Condo. Ass'n, Inc., 625 So. 2d 111 (Fla. 3d DCA 1993)
- Zephyr Aviation Servs., Inc. v. Amerijet Int'l, Inc., 631 So. 2d 371 (Fla. 4th DCA 1994)
- Ocean Vill. Condo. Ass'n, Inc. v. Brooks, 649 So. 2d 230 (Fla. 1995)