LIANSY C. CARBONELL, ET AL.

v.

MARSHALL GLADE, ETC.

Third District Court of Appeal State of Florida

Opinion filed June 19, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0708 Lower Tribunal No. 20-246-K ________________

Liansy C. Carbonell, et al., Appellants,

vs.

Marshall Glade, etc., Appellee.

An Appeal from the Circuit Court for Monroe County, Timothy J. Koenig, Judge.

Mendez Law Offices, PLLC, and Diego G. Mendez, for appellants.

Nelson Mullins Riley & Scarborough LLP, and Gary M. Freedman and Frank P. Terzo; Berger Singerman LLP, and Brian G. Rich and Michael J. Niles, for appellee.

Before EMAS, LOBREE and BOKOR, JJ.

EMAS, J.

1 The order advised that self-representation was not an available option for EIG and that, as a corporate entity, it may appear only through counsel. See Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So. 2d 247, 248 (Fla. 3d DCA 1985) (“It is well recognized that a corporation, unlike a natural person, cannot represent itself and cannot appear in a court of law without an attorney.” (citing Nicholson Supply Co. v. First Fed. Sav. & Loans Ass’n of Hardee Cnty., 184 So. 2d 438 (Fla. 2d DCA 1966))).

2 We reject Glade’s contention that Perez is not a party to this appeal. See Westfield Ins. Co. v. Sloan, 671 So. 2d 881, 882 (Fla. 5th DCA 1996) (holding law firm could be added by amendment to notice of appeal naming only client as appellant after time for filing appeal had run, absent showing that appellee was substantially prejudiced) (citing Fla. R. App. P 9.110(d) and committee notes following) (“The advisory committee intended that defects in the notice would not be jurisdictional or grounds for disposition unless the complaining party was substantially prejudiced.”); Milar Galleries, Inc. v. Miller, 349 So. 2d 170, 171 (Fla. 1977) (“[T]he purpose of a notice of appeal is to disclose to an adverse party and the reviewing court that an appeal from an appealable order, judgment or decree of the trial court is intended. . . . As long as parties have received that notice and have not been prejudiced by any deficiencies or ambiguities in the notice of appeal, the dismissal of such

an appeal is inconsistent with the concept of appellate review and with proper administration of justice.”); see also Fla. R. App. P. 9.040(d) (“At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits. In the absence of amendment, the court may disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.”); Pakonis v. Clark, 183 So. 3d 386, 387 (Fla. 3d DCA 2014) (“[A]ny defect in failing to expressly name Prejean–Graves and Lee as appellees in the notice of appeal or the failure to attach the directed verdict order to the notice should be treated as non-jurisdictional.”) (citing Westfield Ins. Co. v. Sloan, 671 So. 2d 881 Fla. 5th DCA 1996) and quoting Fla. R. App. P. 9.110(d) (“The advisory committee intended that defects in the notice would not be jurisdictional or grounds for disposition unless the complaining party was substantially prejudiced.”)).³ In Karan v. Pernia, 343 So. 3d 689, 690 (Fla. 3d DCA 2022), we noted the distinction between our standard of review of an order denying a motion to

vacate default (abuse of discretion) and an order denying motion to vacate default final judgment (gross abuse of discretion).⁴ We hold that the trial court’s findings and its order striking pleadings and entering default were sufficient given the record below establishing that the conduct “was the result of [defendants’] willful and deliberate disregard of the court’s orders, rather than any mistake or inadvertence.” Ledo v. Seavie Res., LLC, 149 So. 3d 707, 711 (Fla. 3d DCA 2014). Moreover, to the extent they contend the trial court failed to make required findings, defendants failed to preserve the issue by raising it in their motion for rehearing. See Fla. R. Civ. P. 1.530(a) (“To preserve for appeal a challenge to the failure of the trial court to make required findings of fact in the final judgment, a party must raise that issue in a motion for rehearing under this rule.”).

5 In his answer brief, Glade offered no substantive response to this claim, contending only that Perez was not a proper party to this appeal.

We therefore affirm the trial court’s orders in all respects, save for the property located at 96000 Overseas Highway, M⁴, Key Largo, Florida. We reverse the trial court’s order to the extent that it directed the transfer and sale of that property, and remand for further proceedings consistent with this opinion, including (if appropriate)⁶ an evidentiary hearing related to a determination of the validity of Perez’s homestead claim.

6 See, e.g., DiGiorgio v. DiGiorgio, 48 So. 3d 968, 970 (Fla. 3d DCA 2010):

The filing of the husband's Notice of Homestead Affidavit, wherein he makes a claim for homestead exemption, is not the determining factor of whether or not the property is the husband's homestead and it matters not if the Notice of Homestead Affidavit was filed after the judgment lien. The question of whether the property constitutes homestead can be answered only upon proof of the husband's residence. While we agree with the husband that the levy and execution of the parties' property may be barred by the protection of homestead, the question of whether the property is, in fact, the husband's homestead can only be answered by evidentiary proof. Only after the question of whether the property is the husband's homestead is answered by evidentiary proof can it be determined if the trial court properly

9

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

denied the motion to strike execution and sheriff's sale. The determination of whether the property is homestead is a question of fact to be resolved by the trier of fact below.