J&J INDUSTRIES, INC. v. CARPET SHOWCASE OF TAMPA BAY, INC., 98-01557.
Decision Date | 27 October 1999 |
Docket Number | No. 98-01557.,98-01557. |
Citation | 745 So.2d 1042 |
Parties | J&J INDUSTRIES, INC., Appellant, v. CARPET SHOWCASE OF TAMPA BAY, INC., Appellee. |
Court | Florida District Court of Appeals |
Walter Edwards Aye of Walter Edwards Aye, P.A., Tampa, for Appellant.
Richard J. Dafonte of Richard J. Dafonte, P.A., Largo, for Appellee.
J&J Industries, Inc. (J&J), appeals the order entering a default against J & J for failing to timely file an answer, and the nonfinal order dismissing its counterclaim against Carpet Showcase of Tampa Bay, Inc. (Carpet). We reverse the default and affirm the dismissal of the counterclaim.
J&J asserts that the trial court erred by entering the default on its own motion without giving J&J notice of default when J&J had filed a counterclaim and an answer before the court ordered the default. Florida Rule of Civil Procedure 1.500(b) provides:
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 notice of the application for default.
(Emphasis added.)
The record supports that although J&J untimely filed its answer and counterclaim, it did file these items before the court entered a default; therefore, the court erred by entering the default without giving J&J notice. See EGF Tampa Assocs. v. Edgar V. Bohlen, G.F.G.M. A.G., 532 So.2d 1318, 1320 (Fla. 2d DCA 1988)
(. ) See also Barnett Bank of Southwest Florida v. Anderson, 488 So.2d 923, 924 (Fla. 2d DCA 1986) ( ).
J&J also contends that the trial court erred by dismissing its counterclaim, which J&J filed four years after Carpet filed its original complaint. The trial court determined that pursuant to the guidelines set forth in Londono v. Turkey Creek, Inc., 609 So.2d 14 (Fla.1992), the counterclaim was not compulsory because there was no logical relationship between the two claims. We agree, based on the record before this court, that the counterclaim is not compulsory.
We affirm the nonfinal order dismissing the counterclaim;...
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...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 ......