COLBY MATERIALS, INC., APPELLANT,
v.
CALDWELL CONSTRUCTION, INC., APPELLEE
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Colby Materials appeals a default judgment entered after it failed to properly respond to Caldwell Construction's complaint, instead filing pro se motions through its owner rather than through licensed counsel. The appellate court affirms, holding that the trial court properly exercised its authority to enter default under Florida Rules of Civil Procedure Rule 1.500(b) when Colby Materials failed to provide adequate opposition to the motion for default.
The trial court properly entered the default judgment under Rule 1.500(b) of the Florida Rules of Civil Procedure because Colby Materials failed to properly respond to the complaint in a timely manner. The appellate court further held that Colby Materials failed to meet its burden of proving error on appeal by failing to provide a transcript of the hearing or an approved statement of the evidence.
[1] A trial court may enter a default judgment against a party who fails to properly defend an action.
[2] Pro se motions filed on behalf of a corporation are unauthorized and may be stricken.
Previewing 2 of 5 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“Rule 1.500(b) of the Florida Rules of Civil Procedure authorizes a trial court to enter a default judgment against a party when the party fails to properly defend the action.”
Establishes the legal authority for the trial court's default judgment and the standard governing such judgments
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Join FLexlaw to unlock all legal intelligenceCaldwell Construction sued Colby Materials for reimbursement of an alleged double payment under a construction contract. Colby Materials' owner filed …
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PALMER, J.
Colby Materials, Inc. appeals the final default judgment entered in favor of Caldwell Construction, Inc. Concluding that the trial court properly entered default on the showing that Colby Materials failed to properly respond to Caldwell Construction’s complaint in a timely manner, we affirm.
Caldwell Construction filed suit against Colby Materials seeking reimbursement for an alleged double payment in connection with a construction contract executed by the parties. Colby Materials responded by filing a motion to strike the complaint and a motion to dismiss the action.
However, both of the motions were prepared and filed pro se by the owner of Colby Materials, not by a licensed attorney. Caldwell Construction filed a motion to strike the motions as being unauthorized and filed a separate motion for default based on the fact that Colby Materials had failed to properly respond to its complaint. Colby Materials filed a response to the motion to strike. The response was prepared by a licensed attorney, and requested that the trial court deny the motion for default and permit counsel a reasonable time to respond to the complaint.
However, Colby Materials filed no affidavits in opposition to the motion for default, establishing a valid excuse for not properly responding to the complaint nor a proposed responsive pleading.
The trial court conducted a hearing on the pending motions. Upon review, the trial court entered an order granting the motion to strike and the motion for default and, thereafter, entered a final judgment in favor of Caldwell Construction. This appeal followed.
Colby Materials argues that the trial court erred in entering a default judgment in this case because there is no indication that the pro se motions filed by its owner in response to Caldwell Construction’s complaint prejudiced Caldwell Construction, that the owner of Colby Materials acted with knowledge that it was improper to file pro se motions on behalf of a corporation, or that such filings could not have been cured by the later appearance of counsel. We disagree.
Rule 1.500(b) of the Florida Rules of Civil Procedure authorizes a trial court to enter a default judgment against a party when the party fails to properly defend the action. Here, the record demonstrates that Colby Materials failed to properly respond to the complaint in a timely manner, and therefore, the trial court possessed the authority to enter a default.
In challenging the trial court’s granting of the motion for a default judgment, the burden is on the appellant to show that the trial court erred. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979). Given that no affidavits were filed of record, Colby Materials could only have met its burden by presenting a transcript of testimony submitted at the motion hearing.
However, Colby Materials failed to provide this court with either a transcript of the hearing or an approved statement of the evidence or proceeding pursuant to rule 9.200(b)(4) of the Florida Rules of Appellate Procedure. As a result, Colby Materials has failed to sustain its burden of proving any error. See All American Soup & Salad, Inc. v. Colonial Promenade, 652 So. 2d 911 (Fla. 5th DCA 1995)(holding that, by failing to provide complete transcript, appellant failed to meet burden of establishing reversible error to overcome presumption of correctness afforded to trial court’s decision); see also National Enterprises, Inc. v. Foodtech Hialeah, Inc., 777 So. 2d 1191 (Fla. 3d DCA 2001)(holding that in the absence of a transcript or stipulated statement reflecting any explanation as to good cause proffered to trial court, the district court of appeal could not conclude that trial court abused its discretion in dismissing the action for lack of prosecution).
AFFIRMED.
THOMPSON and MONACO, JJ., concur.
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Colby Materials, Inc. v. Caldwell Constr., Inc., 926 So. 2d 1181 (Fla. 2006)…gree with Justice Wells that jurisdiction was improvidently granted. Direct and express conflict does not exist between Torrey v. Leesburg Regional Medical Center, 769 So. 2d 1040 (Fla.2000), and Colby Materials, Inc. v. Caldwell Construction, Inc., 868 So. 2d 584 (Fla. 5th DCA 2004). [*1185] In Torrey, 769 So. 2d at 1041, the question decided was “whether a complaint filed and signed by an attorney not licensed to practice in Florida is a nullity or an amendable defect.” The Court answered that question by h…1 / 2
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Garland Hogan v. Garceau, 880 So. 2d 823 (Fla. 5th DCA 2004)…The appellees argue only that the lower court properly entered the default judgment because Hogan failed to file an answer within 20 days and failed to file a motion to set aside the default, citing Colby Materials, Inc. v. Caldwell Constr., Inc., 868 So. 2d 584 (Fla. 5th DCA 2004). In Colby, this Court held that the burden is on the appellant to show that the trial court erred in granting a default judgment. This Court found that Colby failed to meet that burden because it failed to file any affidavits or…
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Aldrich v. Est. OF Grace M. Aldrich, 886 So. 2d 338 (Fla. 5th DCA 2004)…is impossible to verify which attachments to the petition were actually introduced into evidence or considered by the trial court. As such, the Aldriches have failed to meet their burden of proof. See Colby Materials Inc., v. Caldwell Constr., Inc., 868 So. 2d 584 (Fla. 5th DCA 2004)(holding that the failure to provide the court with either a transcript of the hearing or an approved statement of the evidence and proceedings pursuant to rule 9.200(b)(4) of the Florida Rules of Appellate Procedure results in a…
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Nat'l Enters., Inc. v. Foodtech Hialeah, Inc., 777 So. 2d 1191 (Fla. 3d DCA 2001)
- Preston Duke John Church v. State, 652 So. 2d 911 (Fla. 2d DCA 1995)
- ALL Am. Soup & Salad, Inc. v. Colonial Promenade, 652 So. 2d 911 (Fla. 5th DCA 1995)