TLC TRUST AND JEFF BROWN, APPELLANTS,
v.
SHIRLEY SENDER, APPELLEE

Fla. 4th DCA | 2000-04-26
No. 4D98-3181
GUNTHER and FARMER, JJ, concur.
757 So. 2d 570 Florida District Court of Appeal, Fourth District (2000) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

TLC Trust and Jeff Brown appealed a default final judgment entered by the trial court in a quiet title action. The court reversed the default judgment as to Brown because he had filed responsive pleadings before default was entered and was not provided notice of the default application, but affirmed the default as to TLC because TLC waived the issue by failing to challenge it in the trial court.


Holding

The default judgment against Brown was improper and reversed because Brown had filed responsive pleadings before default was entered and did not receive notice of the application for default as required by Florida Rule of Civil Procedure 1.500(b). The default judgment against TLC was affirmed because TLC waived the issue by failing to challenge it in the trial court. The service of process issue was not preserved for appellate review.


Headnotes

[1] A default judgment is improper when a party has filed a responsive pleading prior to the entry of default.

[2] A party who has appeared in an action by filing or serving any papers must be served notice of the application for default.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“A default is, therefore, improper when a party has filed a responsive pleading prior to the entry of default.”

Establishes the legal standard that filing responsive pleadings before default prevents entry of default judgment

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

In October 1991, Brown entered into a purchase option agreement with Sender for land, requiring Brown to pay property taxes and assessments or tender …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
HOLMES, ILONA, Associate Judge.

HOLMES, ILONA, Associate Judge.

Appellants TLC Trust (TLC) and Jeff Brown (Brown) appeal from the trial court’s entry of a default final judgment. We reverse as to Brown and remand for further proceedings.

In October 1991, Appellee, Shirley Sender (Sender), and Brown entered into a purchase option agreement for the purchase of land. According to the agreement, in order to exercise the option, Brown was to pay the property taxes and all county assessments for a full year or tender the full purchase price. In return, Sender would execute a warranty deed transferring the property to Brown. In the event of a breach, the full purchase price would be due.

Brown defaulted and Sender paid all taxes and assessments for the years 1992 and 1993. In December 1993, Sender executed a warranty deed transferring the property to TLC. According to Sender, there was an agreement that TLC would not record the deed until Brown paid the delinquent taxes. Notwithstanding this agreement, TLC recorded the warranty deed. Sender then sued both TLC and Brown to quiet title to the property. Sender served Brown personally and also served Brown with TLC’s summons.

Brown filed a motion to dismiss the complaint, which was granted by the trial court. The court, however, granted Sender twenty (20) days to file an amended complaint. TLC and Brown were given ten (10) days to file an answer to the amended complaint. Sender filed her amended complaint on February 6, 1998. In March 1998, Sender moved for and obtained a default against TLC. Shortly thereafter, Brown filed an answer asserting several affirmative defenses as well as a counterclaim against Sender. In August 1998, Sender moved for, and the trial court entered, a default final judgment quieting title to the property against the claims of TLC and Brown. Brown subsequently filed a motion for rehearing, as well as a motion to set aside the default final judgment.

On appeal, TLC and Brown contend that the trial court erred in entering a default judgment against Brown. Florida Rule of Civil Procedure 1.500(c) provides that “[a] party may plead or otherwise defend at any time before default is entered.” A default is, therefore, improper when a party has filed a responsive pleading prior to the entry of default. See Graves v. Giordano, 590 So. 2d 1113 (Fla. 4th DCA 1991). The record reflects that at the time the default judgment was entered, Brown’s answer and other pleadings were already filed.

In order to enter a default after a party has appeared in the action by filing or serving any papers, notice of the application for default must be served. See Zeigler v. Huston, 626 So. 2d 1046, 1048 (Fla. 4th DCA 1993); Fla. R. Civ. P. 1.500(b). The record reflects that Brown did not have notice of the application for default as required by rule 1.500. ' The entry of default judgment against Brown was, therefore, inappropriate.

As to the default judgment against TLC, we find that TLC waived this issue by failing to challenge the default in the trial court. The record reflects that TLC did not file a responsive pleading prior to the entry of default, nor did TLC move to set aside the default judgment. Further, there is nothing in the record to indicate that the pleadings filed by Brown are also the pleadings of TLC.

TLC and Brown also contend that service of process on TLC was improper. We find that TLC and Brown failed to preserve this issue for appellate review. Thus, this court may not consider it on direct appeal.

Accordingly, we reverse the default judgment as to Brown, but affirm as to TLC. This cause is remanded for further proceedings' consistent with this opinion.

GUNTHER and FARMER, JJ, concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …e entry of default. Under that rule “ ‘[a] party may plead or otherwise defend at any time before default is entered’ A default is, therefore, improper when a party has filed a responsive pleading prior to the entry of default.” TLC Trust v. Sender, 757 So. 2d 570, 571 (Fla. 4th DCA 2000) (emphasis supplied) (quoting Fla. R. Civ. P. 1.500(c)). V-Strategic countered that incorporating rule 1.500(c) into section 51.011 proceedings would undermine the purpose and utility of the summary-eviction process, which en…
    1 / 2
  • Baldomiano Rangel v. Midfirst Bank, 187 So. 3d 289 (Fla. 4th DCA 2016)
    …any paper after the default is entered, the clerk shall notify the party of the entry of the default. The clerk shall make an entry on the progress docket showing the notification. Fla. R. Civ. P. 1.500(b)-(e) (emphasis added); TLC Trust v. Sender, 757 So. 2d 570, 571 (Fla. 4th DCA 2000) (“A default is, therefore, improper when a party has filed a responsive pleading prior to the entry of default.”); J & J Indus., Inc. v. Carpet Showcase of Tampa Bay, Inc., 745 So. 2d 1042, 1042 (Fla. 2d DCA 1999) (holding t…
  • Azure-Moore v. Hoyen, 300 So. 3d 1268 (Fla. 4th DCA 2020)
    …ally, the court must “enter” the default. That was not done here prior to counsel filing the answer. Under Rule 1.500(c), a default is “improper when a party has filed a responsive pleading prior to the entry of default.” TLC Trust v. Sender, 757 So. 2d 570, 571 (Fla. 4th DCA 2000). Here, the trial court had a clear order requiring an answer by a deadline. While not self-executing, certainly the parties were on notice, and the trial court could have entered a default with no further hearing at a…

Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw