RENIA T. MARANTO, APPELLANT,
v.
ARTHUR DEARBORN, AS TRUSTEE OF THE ISAAC R. BOOTHBY TRUST, APPELLEE
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Renia Maranto appeals a final default judgment entered against her for failure to appear at calendar call and trial. The Third District Court of Appeal reverses and remands, finding the entry of default judgment and denial of her motion to set it aside constituted gross abuse of discretion due to lack of proper notice and failure to prove liability.
The court reverses the final default judgment and the order denying the motion to set it aside. The entry of default judgment constituted gross abuse of discretion both because no proof of liability was presented on contested issues and because Maranto was not provided notice of the application for default as required by Rule 1.500(b), Florida Rules of Civil Procedure.
[1] A default judgment entered without proof of the plaintiff's claim on contested issues is an abuse of discretion.
[2] A default judgment entered without prior notice of the application for default, when the party against whom relief is sought has appeared in the action, must be set aside…
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Join FLexlaw to unlock all legal intelligence“the entry of default final judgment and the order denying the motion to set aside the same to be a gross abuse of discretion”
Establishes the core holding that the trial court abused its discretion in entering and maintaining the default judgment.
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Join FLexlaw to unlock all legal intelligenceMaranto failed to appear at calendar call and trial, resulting in entry of a final default judgment. She was unrepresented at the time as her counsel …
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PER CURIAM.
Renia T. Maranto, the defendant below, appeals an order denying her motion to set aside a final default judgment. The final default judgment was entered as a result of Maranto’s failure to appear at calendar call and trial.1 Although there appears to be a dispute between the parties as to whether Maranto received actual notice of the calendar call and trial, and the record is not definitive on this point; we find the entry of default final judgment and the order denying the motion to set aside the same to be a gross abuse of discretion.
Assuming, arguendo, first of all, that Maranto received actual notice and failed to appear, it is undisputed that the default judgment was entered without appellee providing any proof of his claim on the contested 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 liability and there was no evidence of liability presented); Belcher v. Ferrara, 511 So. 2d 1089, 1091 (Fla. 3d DCA 1987) (holding where no evidence presented to establish liability, judgment by way of directed verdict was impermissible default without notice); Ortiz v. Nicolaides, 196 So. 2d 186, 187 (Fla. 3d DCA 1967) (finding trial court abused its discretion in granting default on liability where defendant with notice, failed to appear at trial).
Further, the record before us is totally void of any notice being provided to Mar-anto of any application for the default final judgment.
Rule 1.500(b), Fla. R. Civ. P.2 mandates that when a party against whom affirmative relief is sought has appeared in the action by filing or serving any papers, no default may be entered against such 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 entered in violation of the due process notice requirement of Rule 1.500 must be set aside without any regard as to whether a meritorious defense is presented or excusable neglect is established. Yellow Jacket Marina, Inc., 670 So. 2d at 171; see also Hyman v. Canter, 389 So. 2d 322 (Fla. 3d DCA 1980) (holding where order of default is found to be invalid, defendant need not show meritorious defense).
Put another way, the “failure to produce proof of service of the required notice of application for default alone renders the entry of a default judgment erroneous.” Clearvalle, Inc., 561 So. 2d at 1354 (citations omitted).
For these reasons, we reverse the final default judgment and order denying the motion to set aside the same and remand for further proceedings.
Reversed and remanded.
. Maranto was unrepresented at the time since her counsel had been permitted to withdraw from the case.
. That rule provides that:
When a parly against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, that party shall be served with notice of the application for default, (emphasis added).
Cases With Similar Vibessemantic neighbors from the corpus
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Molina v. Watkins, 824 So. 2d 959 (Fla. 3d DCA 2002)…to appear at trial). Moreover, the entry of this final default judgment was an abuse of discretion where FCA received no prior notice of Watkins’ ore terms application for default pursuant to Rule 1.500(h), Fla. R. Civ. P.4 See Maranto v. Dearborn, 687 So. 2d 940, 941 (Fla. 3d DCA 1997) (holding that “[a]ny default entered in violation of the due process notice requirement of Rule 1.500 [, Fla. R. Civ. P.] must be set aside without any regard as to whether a meritorious defense is presented or excusable negl…
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Dep't of Transp. v. Mastrangelo, 691 So. 2d 643 (Fla. 5th DCA 1997)…default as required by Florida Rule of Civil Procedure 1.500(b).” Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996). International Energy Corp. v. Hackett, 687 So. 2d 941 (Fla. 3d DCA Feb. 12, 1997); Maranto v. Dearborn, 687 So. 2d 940 (Fla. 3d DCA Feb. 12, 1997); Clark v. Perlman, 599 So. 2d 710 (Fla. 1st DCA 1992). In the instant case, the defendant, DOT, had previously filed papers in this action but was not served with notice of Mastrangelo’s application for default as require…
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Baleanu v. Gheorghe Sandulescu, 78 So. 3d 98 (Fla. 4th DCA 2012)…reyhound Fin. Corp., 592 So. 2d 1218, 1218 (Fla. 1st DCA 1992). The default may not be entered, however, until the defendant is served with notice of the application for default and afforded an opportunity to explain. See, e.g., Maranto v. Dearborn, 687 So. 2d 940, 941 (Fla. 3d DCA 1997) (reversing default entered following failure to appear for trial where prior notice required by rule 1.500 not afforded defendant); Neder, 592 So. 2d at 1218 (reversing default entered following failure to comply with court o…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Zeigler v. Huston, 626 So. 2d 1046 (Fla. 4th DCA 1993)
- Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967)
- Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170 (Fla. 1st DCA 1996)
- Belcher v. Eileen and Charles Ferrara, 511 So. 2d 1089 (Fla. 3d DCA 1987)
- Clearvalle, Inc. v. Cohen, 561 So. 2d 1354 (Fla. 4th DCA 1990)
- Ellis E. Neder, Jr. v. Greyhound Fin. Corp., 592 So. 2d 1218 (Fla. 1st DCA 1992)
- Powers v. Gentile, 662 So. 2d 374 (Fla. 5th DCA 1995)
- Hyman v. Goldie Canter, 389 So. 2d 322 (Fla. 3d DCA 1980)
- Cluett v. Krystyniak, 532 So. 2d 739 (Fla. 2d DCA 1988)
- Turner Props., Inc. v. Marchetta, 607 So. 2d 506 (Fla. 3d DCA 1992)