Third District Court of Appeal
State of Florida
Opinion filed March 30, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1746
Lower Tribunal No. 20-26030
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Armando Cardona, et al.,
Appellants,
vs.
FirstBank Puerto Rico, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Reemberto
Diaz, Judge.
Robert C. Meyer, P.A., and Robert C. Meyer, for appellants.
Shutts & Bowen LLP, and Aliette D. Rodz and Jerel C. Dawson, for
appellee FirstBank Puerto Rico.
Before EMAS, LINDSEY and BOKOR, JJ.
EMAS, J.
INTRODUCTION
Armando Cardona, Sr., Armando Cardona, Jr., Maria Cardona, Zuyen
Cardona, and CMA Corporation, the defendants below, appeal from a default
foreclosure final judgment in favor of plaintiff, FirstBank Puerto Rico
(“FirstBank”), as well as an order denying defendants’ subsequent motion to
vacate same. We reverse and, for the reasons that follow, hold that the trial
court erred in denying the motion to vacate the final judgment.
FACTUAL AND PROCEDURAL BACKGROUND
FirstBank filed the instant foreclosure complaint, naming the Cardonas
and CMA Corporation as defendants. The defendants did not answer the
complaint but, on February 5, 2021, (prior to the date a response to the
complaint was due 1) defendants’ attorney, Robert C. Meyer, emailed a
proposal for settlement to counsel for FirstBank.
The subject line of defendants’ email read: “Proposal on []Bank Puerto
Rico v. CMA and Cardonas Case No: 2020-026030-CA-01 Div. 30.”
Attached to the email was a three-page, written proposal for settlement,
which contained the reference “FirstBank Puerto Rico v. CMA and Cardonas,
Case No: 2020-026030-CA-01 Div 30.”
1
The defendants were served on different dates, triggering different
deadlines for the filing of a response. The earliest deadline for any defendant
to respond to the complaint was February 8, 2021.
2
The three-page settlement proposal indicated that defendants’
attorney was “writing this letter to attempt to resolve the above-described
lawsuit filed by your client against my clients. This proposal is being brought
on behalf of the Corporation as well as on behalf of the individuals.” The
settlement letter went on to describe what counsel believed was his clients’
defense to the lawsuit but noted that his clients wished to “reconcile matters,”
and thus offered certain payment terms in furtherance of the proposed
settlement.
Thereafter, several emails were exchanged between plaintiff’s attorney
and defendants’ attorney, all of which clearly evidence that they were
discussing—and attempting to resolve—the instant lawsuit between their
clients. Indeed, at one point plaintiff’s attorney, in a response to an email by
defendants’ attorney, indicated that “the bank may consider a resolution of
this type however, it would need to include payment of the attorney fees
related to this matter.” All told, the two attorneys exchanged more than
fifteen emails between February 5 and May 19, 2021.
Nevertheless, on May 18, 2021, FirstBank filed an ex parte motion for
clerk’s default against defendants, alleging defendants “failed to file or serve
3
any paper in this action.”2 The certificate of service on FirstBank’s motion
for clerk’s default indicated service was sent to “all parties of record.” The
motion for default was not sent to or served on defendants’ attorney, even
though he and plaintiff’s attorney had been exchanging emails regarding this
lawsuit since February.
The clerk’s default was entered on June 2, 2021, after which FirstBank
filed a motion for default final judgment. The notice of hearing was sent to
the Cardonas, but again was not sent to or served upon defendants’
attorney. The court entered a default final judgment of foreclosure on June
23, 2021. A copy of the judgment was mailed to the Cardonas, but was not
sent to or served on defendants’ attorney.
On July 9, 2021, defendants’ attorney filed an emergency motion to
vacate the default and default final judgment, alleging that FirstBank failed
to serve defendants’ attorney with a copy of the motion for default, the motion
for default final judgment, the notices of hearing, or a copy of the subsequent
default and default final judgment. The motion also alleged that the ex parte
default and default final judgment motions were granted without notice to
defendants’ counsel, even though defendants’ counsel had been in contact
2
On April 29, 2021, a clerk’s default had been entered against CMA Corp.,
which was also represented by attorney Meyer as stated in the emails sent
by him to plaintiff’s attorney.
4
with plaintiff’s counsel since February and that plaintiff sought the default and
default final judgment while settlement negotiations were ongoing. Attached
to the motion were the previously described email exchanges between the
parties’ counsel. Defendants’ attorney also filed an affidavit of Armando
Cardona, Jr., and Zuyen Cardona, averring that neither of them received a
notice of hearing on the motion for final judgment nor a copy of the final
judgment.
In response to the motion to vacate, FirstBank asserted that
defendants were required to make a showing of excusable neglect, due
diligence, and meritorious defense to establish their entitlement to have the
judgment vacated, and that defendants had failed to make this requisite
showing. FirstBank also argued that the communications from attorney
Meyer did not constitute the filing of a “paper” under Rule 1.500 and therefore
plaintiff was not required to provide Meyer with notice of the application for
default (and default final judgment).
On July 20, 2021, the court held a hearing. Counsel for FirstBank took
the position that there were no negotiations between the parties, but only
that “opposing counsel was trying to refinance the property.”3 Counsel for
3
While defendants’ attorney Meyer did send a May 19, 2021, letter to
plaintiff’s attorney asking whether “we can resolve the lawsuit with a
refinance . . .”, this letter was dated one day after FirstBank had filed its
5
FirstBank also took the position, as argued in its written response, that to be
entitled to relief, defendants were required (but failed) to establish excusable
neglect, a meritorious defense, and due diligence. The trial court denied the
motion to vacate and found: “Defendants did not meet the elements to vacate
a default. Specifically, Defendants did not assert a meritorious defense, as
required to vacate a default.” This appeal followed.
DISCUSSION AND ANALYSIS
We begin with the well-established proposition that “under Florida law,
‘if there be any reasonable doubt in the matter of vacating a default, it should
be resolved in favor of granting the application and allowing a trial upon the
merits of the case.’” Contreras v. Stambul, LLC,
306 So. 3d 1143, 1144 (Fla.
3d DCA 2020) (quoting State Bank of Eau Gallie v. Raymond,
138 So. 40,
43 (Fla. 1931)). See also Cardet v. Resol. Tr. Corp.,
563 So. 2d 167, 168
(Fla. 3d DCA 1990) (“The purpose of the rule is to speed the action toward
conclusion on the merits where possible, not to expedite litigation by ex parte
actions and surprise”).
motion for clerk’s default against the Cardonas and after FirstBank had
obtained a clerk’s default against CMA Corporation. A review of the email
correspondence clearly evidences that Meyer advised plaintiff’s attorney he
was representing all defendants in the instant lawsuit, and that his
correspondence with plaintiff’s attorney was undertaken in an effort to
resolve that litigation.
6
Florida Rule of Civil Procedure 1.500 provides, in pertinent part:
(a) By the Clerk. When a party against whom affirmative relief is
sought has failed to file or serve any document in the action, the
party seeking relief may have the clerk enter a default against
the party failing to serve or file such document.
(b) By the Court. When a party against whom affirmative relief is
sought has failed to plead or otherwise defend as provided by
these rules or any applicable statute or any order of court, the
court may enter a default against such party; provided that if such
party has filed or served any document in the action, that party
must be served with notice of the application for default.
...
(d) Setting aside Default. The court may set aside a default, and
if a final judgment consequent thereon has been entered, the
court may set it aside in accordance with rule 1.540(b).
Rule 1.500(a), which permits entry of an ex parte clerk's default only
when a party “has failed to file or serve any document 4 in the action,” “should
be liberally construed in favor of deciding cases on the merits” rather than by
default. Ace Funding Source, LLC v. A1 Transp. Network, Inc.,
314 So. 3d
726, 727 (Fla. 3d DCA 2021) (additional citations omitted).
4
As this court noted in Ace Funding, 314 So. 3d at 727 n. 2, a previous
version of rule 1.500(a) used the word “paper.” In 2016, the Florida Supreme
Court amended this rule, replacing the word “paper” with “document”, in
recognition of existing e-filing and e-service requirements in the Florida
courts. In re Amendments to Florida Rules of Civil Procedure,
199 So. 3d
867, 884 (Fla. 2016).
7
In furtherance of this policy in favor of deciding lawsuits on their merits,
Florida courts construing rule 1.500(a) have defined the term “any document”
broadly and liberally, “and [it] includes any written communication that
informs the plaintiff of the defendant's intent to contest the claim.” Contreras,
306 So. 3d at 1145 (citations omitted).
Therefore, “entry of a clerk’s ‘default as authorized under Florida Rule
of Civil Procedure 1.500(a) is not appropriate in cases where the plaintiff
knows that a defendant is represented by counsel who intends to
assert matters in defense of the cause of action.’” Id. (quoting Gulf Maint.
& Supply, Inc. v. Barnett Bank of Tallahassee,
543 So. 2d 813, 816 (Fla. 1st
DCA 1989)) (emphasis added). In such circumstances, “the clerical default
[i]s improvidently entered and the ensuing final judgment cannot stand.”
Id.
As we held in M.W. v. SPCP Grp. V, LLC,
163 So. 3d 518, 521 (Fla.
3d DCA 2015):
In case after case, the Florida courts have held that a party
cannot obtain an ex parte default when the party knows that the
opposing side is represented by counsel and intends to defend
on the merits.
See Apple Premium Fin. Serv. Co. v. Teacher’s Ins. & Annuity Ass’n of Am.,
727 So. 2d 1089 (Fla. 3d DCA 1999) (reversing order denying motion to
vacate default where pre-suit negotiations between counsel for both parties
indicated plaintiff was aware defendant was being represented by counsel
8
and intended to defend on the merits); Gulf Maint.,
543 So. 2d at 816
(reversing denial of motion to vacate clerk’s default and ensuing final
judgment where plaintiff’s counsel “knew at all times that [attorney] was
representing these defendants and intended to assert matters in defense of
the action,” which required plaintiff to serve defendant’s attorney with notice
of the application for default and present to the court for entry (rather than
obtaining a clerk’s default); also noting: Florida’s “default procedure is not
intended to discourage settlement discussions before an answer is filed, nor
is it intended to allow a plaintiff to take undue advantage of a defendant who
engages in settlement efforts”). See also Ole, Inc. v. Yariv,
566 So. 2d 812,
814 (Fla. 3d DCA 1990) (trial court erred in denying motion to set aside
default where “plaintiffs knew that [the defendant] intended to defend the
lawsuit” and “[n]otwithstanding that knowledge, plaintiffs elected to apply ex
parte for entry of a default by the clerk, and the case proceeded thereafter
without notice to [the defendant]”); J.A.R., Inc. v. Universal Am. Realty Corp.,
485 So. 2d 467, 468 (Fla. 3d DCA 1986) (reversing trial court for failing to
set aside default where “[a]lmost two weeks after defendants served their
‘defense’ letter on plaintiff's counsel, plaintiff caused the clerk of the court to
enter a default without notice to defendants”).
9
Applying this controlling precedent to the facts presented, we agree
with defendants that counsel for FirstBank was made aware, before a
responsive pleading from defendants was due, and before filing its motion
for default and subsequent motion for default final judgment, that Meyer
represented the defendants and intended to assert matters in defense of the
action. As a result, the notice of application for default should have been
served on Meyer and should have been presented to the trial court rather
than in an ex parte manner to the clerk. As noted by the Fifth District in Gulf
Maintenance: “A default is a procedural matter within the control of the
attorney, so plaintiff's counsel should contact the attorney known to be
representing a defendant to determine whether the latter intends to proceed
in the matter before causing a default to be entered.” Gulf Maint.,
543 So.
2d at 816.
We further note that the trial court appeared to base its order denying
the motion to vacate on the fact that defendants failed to assert a meritorious
defense in support of their motion to vacate. However, and as this court has
previously held, because the ex parte clerk’s default was improvidently
entered, the trial court was required to vacate the clerk’s default and final
judgment “without regard to whether the defendant can establish a
meritorious defense or whether the defendant can demonstrate inadvertence
10
or excusable neglect.” Ace Funding, 314 So. 3d at 728 (additional citations
omitted).
CONCLUSION
Given the nature and extent of the communications between counsel
for plaintiff and counsel for defendants, plaintiff’s counsel was aware that
defendants were represented by counsel and that defendants intended
through that counsel to assert matters in defense of the cause of action.
Under these circumstances, plaintiff was not authorized to seek an ex parte
default but was instead required to serve defendants’ attorney with a notice
of the application for default and seek such relief with the court. The trial
court erred in denying defendants’ motion to vacate the clerk’s default and
the default final judgment. We reverse and remand for the trial court to
vacate both the default final judgment and the clerk’s default, and for further
proceedings consistent with this opinion.
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