COLLEGE HEALTH II, GP, INC. v. VINCENZO DEPAU

Third District Court of Appeal
State of Florida
Opinion filed October 27, 2021.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D19-1315 & 3D20-1179
Lower Tribunal No. 17-18931
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College Health II, GP, Inc.,
Appellant,
vs.
Vincenzo Depau,
Appellee.
Appeals from the Circuit Court for Miami-Dade County, Jacqueline
Hogan Scola and William Thomas, Judges.
Crabtree & Auslander, and John G. Crabtree, Charles M. Auslander,
Brian C. Tackenberg and Emily Cabrera, for appellant.
Carey Rodriguez Milian, LLP, and Ruben Conitzer, David P. Milian,
Bianca C. Alvarez and Jennifer M. Hernandez, for appellee.
Before LOGUE, SCALES and LINDSEY, JJ.
PER CURIAM.
In this foreclosure action, the trial court denied appellant College
Health II, GP, Inc.’s (“College Health”) motions seeking to vacate a court
default and resulting final default judgment.1 Citing a line of cases holding
that a default must be lifted if the plaintiff's lawyer is aware that the defaulting
defendant is represented by counsel, 2 College Health asserts that the trial
court was required to vacate the default and default final judgment because
appellee Vincenzo Depau’s counsel was aware, by virtue of a notice of
appearance filed in a related, but different, foreclosure case, that College
Health was represented by counsel in the instant case. This line of cases,
however, requires not only "actual knowledge" that the defaulting party is
represented by counsel, but also, "actual knowledge" that the defaulting
party intends to defend against the lawsuit. See Lloyd, 981 So. 2d at 640;
1
In appellate case number 3D19-1315, College Health appeals the June 3,
2019 final order that both (i) denies College Health’s verified motion to vacate
the court’s default brought pursuant to Florida Rule of Civil Procedure
1.500(d), and (ii) enters final default judgment for appellee. While 3D19-1315
was pending, this Court relinquished jurisdiction so that College Health could
file a Florida Rule of Civil Procedure 1.540 motion in the lower court to vacate
the June 3rd final judgment. In appellate case number 3D20-1179, College
Health appeals the August 14, 2020 order denying its rule 1.540 motion. This
Court consolidated the appeals for all purposes.
2
See e.g. U.S. Bank Nat’l Ass’n v. Lloyd, 981 So. 2d 633, 640 (Fla. 2d DCA
2008); Nat’l Union Fire Ins. Co. of Pittsburgh v. McWilliams, 799 So. 2d 378,
380 (Fla. 4th DCA 2001); Gulf Maintenance & Supply, Inc. v. Barnett Bank
of Tallahassee, 543 So. 2d 813, 816 (Fla. 1st DCA 1989).
2
McWilliams, 799 So. 2d at 380; Gulf Maintenance & Supply, 543 So. 2d at
816. On this record, we are unable to conclude that the trial court abused its
discretion by determining that Depau’s counsel was not aware of College
Health’s intention to defend against Depau’s foreclosure claim, and we are
therefore compelled to affirm. Lloyd, 982 So. 2d 639 (recognizing that an
order denying a motion to vacate a default is reviewed under an abuse of
discretion standard).
Affirmed.
3