EDWARD A. STERN, D/B/A A-1 QUARRY KEY-STONE COMPANY, APPELLANT,
v.
COMMERCIAL CONSTRUCTION CORP., A FLORIDA CORPORATION, APPELLEE
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Stern appeals a default judgment entered against him when he failed to appear at trial, and a default entered against him on a counterclaim. The court affirmed the default on Stern's complaint but reversed the default on the counterclaim and subsequent damage judgment, holding that a defendant cannot be defaulted on a counterclaim without proper notice and opportunity to be heard.
The default entered on the plaintiff's complaint is affirmed as a proper dismissal for failure to appear and prosecute. However, the default entered on the defendant's counterclaim was error, as a defendant cannot be defaulted on a counterclaim without notice and the right to be heard, and the subsequent trial and judgment for damages must be reversed and remanded.
[1] A trial court may dismiss a complaint and enter a default against a plaintiff who fails to appear and prosecute the case on the scheduled trial date.
[2] A default entered as to liability on a counterclaim must be preceded by notice to the counter-defendant and an opportunity to be heard on the issue of liability.
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Join FLexlaw to unlock all legal intelligence“We hold that the trial court's action in entering a default against plaintiff was tantamount to a dismissal of the complaint for failure to appear and prosecute.”
Establishes that a default on the plaintiff's complaint is proper when the plaintiff fails to appear at trial.
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Join FLexlaw to unlock all legal intelligenceStern filed suit against Commercial Construction Corp. for damages for materials and work delivered and performed. After all pleadings were filed, the…
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Plaintiff-appellant, Edward A. Stern, brings this appeal to review a default entered against him on his complaint and a default as to liability on defendant-appel-lee’s, Commercial Construction Corp., counterclaim.
Plaintiff filed suit against defendant for damages for materials and work delivered and performed by plaintiff for defendant. Following the entry of all the pleadings the trial court entered an order setting the case for trial, but neither plaintiff nor his attorney were in court on the specified date and nothing in the record on appeal indicates that the attorney ever appeared. The court entered a default on plaintiff’s complaint and a default as to liability on defendant’s counterclaim. A jury trial was held on the issue of damages and a judgment entered for $224.80 in favor of defendant. Plaintiff filed a motion to set aside default, a motion for new trial and a motion for rehearing, claiming that the attorney’s failure to appear was based upon mistake, inadvertence or excusable neglect.
We hold that the trial court’s action in entering a default against plaintiff was tantamount to a dismissal of the complaint for failure to appear and prosecute. When a case goes to trial following the trial judge’s entry of an order setting the trial date and the plaintiff does not appear to prosecute, the complaint can be dismissed and he can suffer a default.
The lower court committed error by entering a default as to liability against plaintiff on defendant’s counterclaim, Ortiz v. Nicolaides, Fla.App.1967, 196 So.2d 186, and then proceeding to trial on the amount *551of damages without plaintiff-counterdefen-dant receiving notice. and being given the right to be heard. Riley v. Gustinger, Fla.App.1970, 235 So.2d 364; Harbour Tower Development Corp. v. Seaboard Equipment Co., Fla.App. 1965, 179 So.2d 405; Grappell v. Lauderdale River Park Estate, Fla.App.1961, 126 So.2d 574.
For the reasons assigned the default entered on appellant’s complaint is affirmed, but the default entered and the subsequent trial and judgment for damages are reversed and remanded.
Affirmed in part and reversed in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967)
- Riley v. Gustinger, 235 So. 2d 364 (Fla. 3d DCA 1970)
- Grappell v. Lauderdale River Park Ests., Inc., 126 So. 2d 574 (Fla. 3d DCA 1961)
- Harbour Tower Dev. Corp. v. Seaboard Equip. Co., Inc., 179 So. 2d 405 (Fla. 3d DCA 1965)