Wednesday, June 17, 2009

Default Reversed Because Counsel Failed to Inform Other Party and Counsel Knew They Intended to Defend Action

In Makes & Models Magazine Inc. v. Web Offset Printing Co. (2D08-1061), the Second District reversed the trial court's order refusing to vacate a clerks default.

Florida Rule of Civil Procedure 1.500, which allows entry of a clerk's default when a party fails to file or serve any paper in an action, should be liberally construed in favor of deciding cases on the merits...Furthermore, a default is not designed to give a strategic advantage to the plaintiff so that it may obtain a judgment without dealing with the defendant's challenges and defenses.

In Lloyd this court held that "[a] trial court should vacate an ex parte default when 'the plaintiff seeking default had actual knowledge that the defendant was represented by counsel and intended to defend the lawsuit, but failed to contact the defendant's counsel prior to seeking default...If the plaintiff is aware that the defendant is represented by counsel and intends to defend the litigation on the merits, it is required to serve the defendant with notice of the application for default and to present the matter to the court for entry of the default...A default that does not comply with this requirement "must be vacated without regard to whether the defendant can establish a meritorious defense or whether the defendant can demonstrate inadvertence or excusable neglect."

[In its conclusion, the Court stated:]

We cannot conclude without making one final observation. Web Offset's argument pressed for a strict and literal interpretation of the default rules without any regard for civility or for the professionalism expected when one party is aware that the opposing party is represented by counsel and intends to defend against the claims at issue. Although these are not difficult concepts to grasp, post-Lloyd, a party's responsibilities when faced with similar circumstances should be clear.


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