Baldomiano Rangel v. Midfirst Bank, Francisco Tapia, Elia Puga, Jose Andres Sanchez, etc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BALDOMIANO RANGEL,
Appellant,
v.
MIDFIRST BANK, FRANCISCO TAPIA, ELIA PUGA, JOSE ANDRES
SANCHEZ a/k/a ANDRES SANCHEZ, UNKNOWN SPOUSE OF
FRANCISCO TAPIA, UNKNOWN SPOUSE OF JOSE ANDRES SANCHEZ
a/k/a ANDRES SANCHEZ, UNKNOWN TENANT 1, UNKNOWN TENANT
2, AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER
OR AGAINST THE ABOVE NAMED DEFENDANT(S), WHO (IS/ARE)
NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN
PARTIES CLAIM AS HEIRS, DEVISEES, GRANTEES, ASSIGNEES,
LIENORS, CREDITORS, TRUSTEES, SPOUSES, OR OTHER
CLAIMANTS, CLERK OF THE CIRCUIT COURT OF PALM BEACH
COUNTY, FLORIDA, STATE OF FLORIDA DEPARTMENT OF
REVENUE,
Appellees.
No. 4D15-548
[March 2, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard H. Harrison, Judge; L.T. Case No.
502013CA002688XXXXMB.
Ronald Denis of Denis Law Offices, P.A., West Palm Beach, for
appellant.
Nicole R. Ramirez of eXL Legal, PLLC, St. Petersburg, for appellee
MidFirst Bank.
DAMOORGIAN, J.
Baldomiano Rangel (“Homeowner”) appeals the trial court’s entry of a
final judgment of foreclosure in favor of MidFirst Bank (the “Bank”)
following a bench trial. Homeowner specifically argues that the trial court
erred in striking his belated answer without first entering a default.
Although we conclude the court erred in striking the belated answer, we
affirm because Homeowner did not preserve the error in any manner.
By way of background, the Bank initiated a residential foreclosure
action against Homeowner and moved for judicial default after he failed to
file any responsive pleadings. In response, Homeowner filed a motion to
dismiss the foreclosure action. The trial court denied Homeowner’s motion
and ordered Homeowner to file his answer within twenty days from the
date of the order, specifying that “[i]f the [Homeowner] fails to timely file
an Answer pursuant to this Order, the [Homeowner] shall be deemed in
default without any further action by the Court.” Homeowner did not
comply with the order and instead waited nearly nine months to file his
answer. No default was entered during those nine months. The Bank
moved to strike the belated answer, arguing that Homeowner’s failure to
comply with the trial court’s order constituted an automatic default per
the self-executing language in that order.
The record reflects that a hearing was held on the Bank’s motion to
strike the answer. However, Homeowner has not provided this Court with
a transcript from that hearing. Following the hearing, the trial court
granted the motion and ordered Homeowner’s answer be stricken without
“prejudice to [the Homeowner] to set aside the default.” Homeowner did
not move to set aside the default. Instead, after the matter was set for
trial, Homeowner notified the court that he would not be attending the trial
because to do so would be futile in light of the trial court’s order striking
his answer. Following the bench trial, which Homeowner did not attend,
the trial court entered final judgment of foreclosure in favor of the Bank.
This appeal follows.
We first hold that the trial court’s “self-executing” default language is
not permitted under Florida Rule of Civil Procedure 1.500(c), which
specifically requires both notice of the application of default and actual
entry of default:
(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 paper in the
action, that party shall be served with notice of the application
for default.
(c) Right to Plead. A party may plead or otherwise defend
at any time before default is entered. If a party in default files
any paper after the default is entered, the clerk shall notify
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the party of the entry of the default. The clerk shall make an
entry on the progress docket showing the notification.
Fla. R. Civ. P. 1.500(b)-(c) (emphasis added); TLC Trust v. Sender, 757 So.
2d 570, 571 (Fla. 4th DCA 2000) (“A default is, therefore, improper when
a party has filed a responsive pleading prior to the entry of default.”); J&J
Indus., Inc. v. Carpet Showcase of Tampa Bay, Inc., 745 So. 2d 1042, 1042
(Fla. 2d DCA 1999) (holding that although the defendant failed to file a
timely answer, the court erred by entering default without first giving the
defendant notice of application of default). The purported “self-executing”
default against Homeowner was, therefore, not authorized by law and the
trial court erred in striking his answer on the basis of default.
We nonetheless hold that by failing to provide this Court with a
transcript from the hearing on the Bank’s motion to strike the answer, and
by further failing to appear at trial, we have no record to indicate that
Homeowner notified the trial court that it erred in striking his answer on
the basis of default. Thus, Homeowner did not preserve the error. Cf.
Stuart-Findlay v. Bank of Am., Nat’l Ass’n, 2016 WL 231704 at *2 (Fla. 4th
DCA Jan. 20, 2016) (borrower preserved error of improperly entered
default by: (1) filing a motion to vacate the default; (2) filing a motion for
rehearing of the order denying the motion to vacate the default; and (3) at
the beginning of trial, orally moving to vacate the default).
Because we have no record indicating that Homeowner notified the
court of its error, we cannot say that raising this error at the start of the
trial would have been futile. Cf. Amquip Crane Rental, LLC v. Vercon
Constr. Mgmt., 60 So. 3d 536, 539 (Fla. 4th DCA 2011) (where transcript
clearly revealed that appellant contested the trial court’s denial of its right
to a trial by jury, and appellant subsequently filed a motion for rehearing
on the same issue, which also was denied, a renewal of the demand for a
jury trial at the beginning of the nonjury trial would have been futile).
Furthermore, the purported default only served to admit liability and
not damages. See Sec. Bank, N.A. v. BellSouth Adver. & Publ’g Corp., 679
So. 2d 795, 798 (Fla. 3d DCA 1996) (“It is well settled that when a plaintiff
obtains a default in a suit for unliquidated damages, the default only
establishes liability. It remains necessary for the plaintiff to prove its
damages at a hearing after notice to the defaulting party.”). Therefore, it
was incumbent on Homeowner to attend the bench trial and provide the
trial court with the opportunity to rule on the validity of the default and to
defend on the issue of damages.
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Accordingly, we affirm the entry of final judgment of foreclosure in favor
of the Bank.
Affirmed.
TAYLOR and GERBER, JJ. concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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