JON E. BISCHOFF, APPELLANT,
v.
DIXIE AUTO PARTS AND EQUIPMENT CORP., A FLORIDA CORPORATION, APPELLEE
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PER CURIAM.
Appellant seeks review by this interlocutory appeal of an order of the Circuit Court for Dade County denying a motion to dismiss a counterclaim and cross-claim filed by the appellee against him subsequent to the entry of a default against it in a foreclosure suit. We find error and reverse.
It was error for the trial court to allow appellee, Dixie Auto Parts and Equipment Corp. to file and prosecute a cross-claim against appellant, a co-defendant, after a default had been entered against it. The Florida Rules of Civil Procedure provide that a party in default may not file pleadings in an action, other than those pleadings of such nature as seek relief from the default. Fla.R.Civ.P. 1.500; Somerville v. Skidmore, 175 So. 2d 575 (Fla.3rd DCA 1965). The order appealed is reversed.
Reversed.
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Hines v. Hines, 494 So. 2d 297 (Fla. 3d DCA 1986)…n addition, a default precludes the defaulting party from filing any pleadings in the action other than those requesting relief from the default. Rudner v. Cabrera, 455 So. 2d 1093 (Fla. 5th DCA 1984); Bischoff v. Dixie Auto Parts & Equipment Corp., 346 So. 2d 146 (Fla. 3d DCA 1977). Since the wife made no attempt to have the default vacated, her attempt to inject the issue of alimony into the proceeding at final hearing without the husband’s consent was not authorized. For this reason, that portion of the fi…
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Rudner v. Cabrera, 455 So. 2d 1093 (Fla. 5th DCA 1984)…alters the effect of the Cheezum decision. We believe that it does, and even though the default had not matured to a judgment, it nevertheless precludes the filing of a counterclaim here. In Bischoff v. Dixie [*1096] Auto Parts and Equipment Corp., 346 So. 2d 146 (Fla. 3d DCA 1977), the court held that it was error for the trial court to permit a defendant to file and prosecute a counterclaim and cross-claim after a default had been entered against it because the Rules of Civil Procedure provide that a party…
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Hill v. Palm Beach Polo, Inc., 717 So. 2d 1080 (Fla. 4th DCA 1998)…or are not enforceable. The only issue is whether the developer had the authority, under the provision giving the developer the authority to modify restrictive covenants, to modify the assessment provisions. Balzer v. Indian Lake Maintenance, Inc., 346 So. 2d 146 (Fla. 2d DCA 1977), cited by both parties, is distinguishable. In Balzer the issue was whether maintenance assessment provisions in deeds and contracts to purchase in a development were enforceable. The court recognized that the provision was “more…
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- Somerville v. Skidmore, 175 So. 2d 575 (Fla. 3d DCA 1965)