MICHAEL A. ETIENNE
v.
MARY ESTIME IRVIN, ETC.
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A party seeking default judgment must provide notice to an opposing party who is represented by counsel and intends to defend on the merits, and cannot obtain default while a timely motion to dismiss remains pending.
[1] A party seeking entry of default must provide notice of the default application to an opposing party known to be represented by counsel and intending to defend on the mer…
[2] Default judgment cannot be entered while a timely motion to dismiss filed by the opposing party remains pending.
Previewing 2 of 2 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“a default 'is not [a] procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.'”
Court reiterated foundational principle that default is not meant to provide unfair advantage to plaintiff
Michael A. Etienne sought and obtained a default final judgment against Mary Estime Irvin without providing her with notice of his application for def…
The full statement of facts, procedural history, and disposition for this case are member content.
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Opinion filed November 18, 2020. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-0941 Lower Tribunal No. 20-7239
________________
Michael A. Etienne,
Appellant,
vs.
Mary Estime Irvin, etc.,
Appellee.
An appeal from a nonfinal order from the Circuit Court for Miami-Dade County, Abby Cynamon, Judge. Michael A. Etienne, in proper person. Law Offices of Jonathan A. Heller, P.A., and Jonathan A. Heller, for appellee. Before SCALES, LINDSEY, and MILLER, JJ. MILLER, J.
Appellant, Michael A. Etienne, challenges a nonfinal order granting appellee,
Mary Estime Irvin, relief from a default and resulting default final judgment pursuant to Florida Rule of Civil Procedure 1.540. We affirm the order under review and write only to reiterate the well-entrenched adage that a default “is not [a] procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.” Coggin v. Barfield, 8 So. 2d 9, 11 (Fla. 1942).
Here, despite possessing knowledge Irvin was represented by counsel and intended to defend on the merits, Etienne failed to furnish her with notice of his application for default. This action was unauthorized under a body of clearly developed precedent. See Contreras v. Stambul, LLC, 45 Fla. L. Weekly D2032 (Fla. 3d DCA Aug. 26, 2020); U.S. Bank Nat’l Ass’n v. Lloyd, 981 So. 2d 633, 640 (Fla. 2d DCA 2008); Apple Premium Fin. Serv. Co. v. Teachers Ins. & Annuity
Ass’n of Am., 727 So. 2d 1089, 1090 (Fla. 3d DCA 1999). Further compounding the procedural error, a timely-served motion to dismiss remained pending at the time
Etienne sought and obtained the default final judgment. See Fla. R. Civ. P. 1.500(c) (“A party may plead or otherwise defend at any time before default is entered.”);
Sansbury v. Wells Fargo Bank, N.A., 204 So. 3d 985, 986-87 (Fla. 5th DCA 2016).
Accordingly, the ruling below was eminently correct, and we affirm in all respects. See DND Mail Corp. v. Andgen Props., LLC, 28 So. 3d 111, 113 (Fla. 4th
DCA 2010).
Affirmed.
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Citator
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N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)…direct conflict with prior decisions of this court is the holding by the District Court that a mere abuse of the trial judge’s discretion is a sufficient basis for reversal of his ruling on the motion to vacate. In Coggin v. Barfield, 150 Fla. 551, 8 So. 2d 9, and Coggin v. Morris, 150 Fla. 555, 8 So. 2d 11, which were by implication relied on by the District Court as well as in Benedict v. W. T. Hadlow Co., 52 Fla. 188, 42 So. 239, this court held that a showing of gross abuse of a trial court’s discret…
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Glenna Somero and Robert Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985)…discretion is necessary on appeal to justify reversal of the lower court’s ruling on a motion to vacate.” Id. at 852 (emphasis deleted). For this proposition the court referred to precedent. In the first case cited, Coggin v. Barfield, 150 Fla. 551, 8 So. 2d 9 (1942), the supreme court held that the test was gross abuse of discretion and reversed the trial court’s entry of a default where a pleading was late for having been filed in the wrong court. The second case cited as authority was Coggin v. Morris,…
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B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)…Fla.2d DCA 1977) (subsequent delay factor in affirming trial court). We believe that this standard as first enunciated by the Supreme Court of Florida in Russ v. Gilbert, 19 Fla. 54, 57 (1882), cited by the court in Coggin v. Barfield, 150 Fla. 551, 8 So. 2d 9 (1942), has been consistently followed by Florida courts, i. e., that “it would be a gross abuse of discretion not to allow a defendant to present his defense if he had a meritorious one, was innocent of culpable negligence and willing to plead and…
Previewing 3 of 53 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Etienne v. Irvin, 45 Fla. L. Weekly D2032 (Fla. 3d DCA 2020)
- U.S. Bank Nat'l Ass'n v. Lloyd, 981 So. 2d 633 (Fla. 2d DCA 2008)
- DND Mail Corp. v. Andgen Props., LLC, 28 So. 3d 111 (Fla. 4th DCA 2010)
- Apple Premium Fin. Serv. Co. v. Teachers Ins. & Annuity Ass'n OF Am. & Chase Bank of Tex. Nat'l Ass'n, 727 So. 2d 1089 (Fla. 3d DCA 1999)
- Newton v. Huston B. Wall, 150 Fla. 510 (Fla. 1942)
- Sansbury v. Wells Fargo Bank, N.A., 204 So. 3d 985 (Fla. 5th DCA 2016)