AVD Enterprises, Inc. v. Network Sec. Acceptance Corp., s. 89-1133

• Decision Date: 05 December 1989
• Docket Number: Nos. 89-1133,89-1515,s. 89-1133
• Citation: 14 Fla. L. Weekly 2810,555 So.2d 401
• Parties: 14 Fla. L. Weekly 2810 AVD ENTERPRISES, INC., d/b/a AVD Security Systems, and Jose A. Garcia, Appellants, v. NETWORK SECURITY ACCEPTANCE CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 401

555 So.2d 401

14 Fla. L. Weekly 2810

AVD ENTERPRISES, INC., d/b/a AVD Security Systems, and Jose A. Garcia, Appellants, v. NETWORK SECURITY ACCEPTANCE CORPORATION, Appellee.

Nos. 89-1133, 89-1515.

District Court of Appeal of Florida Third District.

Dec. 5, 1989.

Rehearing Denied Feb. 13, 1990.

Emilio G. Chavez, South Miami, for appellants.

Goldstein & Tanen and Susan E. Trench, Miami, for appellee.

Before COPE, LEVY and GERSTEN, JJ.

LEVY, Judge.

Defendants appeal a non-final order granting plaintiff's motion for default and the adverse final judgment entered thereafter awarding damages, attorney's fees, and costs. We affirm in part and reverse in part.

In August of 1986, Network Security Acceptance Corporation (Network) and AVD Security Systems entered into a purchase agreement under which AVD sold Network certain contracts for monitored burglar alarm systems.

Problems developed concerning the payments which AVD was receiving from customers, and which it was to forward on to Network. In June of 1988, Network sued AVD. Network initiated the suit by serving Jose A. Garcia, AVD's president and registered agent, and sought a preliminary injunction requiring AVD to turn over the contracts to Network and, further, to deposit the monies collected on these contracts into the court registry. The court granted the preliminary injunction, and, when Network attempted to discover the amounts due and the amounts collected on these contracts, Garcia, acting on behalf of AVD, repeatedly acted so as to thwart this discovery. He failed to appear for numerous depositions, did not provide his bookkeepers for deposition or provide suitable addresses so that Network could find them, did not provide his company's books and records, and failed to answer interrogatories. Counsel for AVD finally entered an appearance on September 28, 1988, and, following a hearing the next day on Network's Motion for Order Compelling Discovery and for Sanctions, Garcia was ordered to appear for the taking of his deposition and AVD was ordered to make its bookkeeper available for deposition. The order also directed that AVD's failure to comply would result in the striking of its pleadings and the entry of other sanctions. Neither Garcia nor AVD complied. In November of 1988, Network amended its Complaint to include a count alleging individual liability on Garcia's part, and sent a copy of this amended complaint to AVD's counsel. On January 31, 1989, counsel for AVD filed a "Reply to Plaintiff's Motion for Entry of Order of Sanctions Against Defendant," the commencement portion of which indicated that the reply was made on behalf of both AVD and Garcia. It was not until February 2, 1989, however, that Garcia was formally served with the amended complaint.

One day earlier, on February 1, 1989, a hearing had been held on Network's Renewed Motion for Entry of Order of Sanctions against AVD. There had still been no compliance with the requested discovery, and, at the hearing, the court specifically found that defendant (singular) "has engaged in a course of conduct to thwart discovery," and ordered defendants (plural) to "provide the addresses for each and every employee of AVD during the period August 21, 1986 to [February 1, 1989]." The order provided no time limits although, at the hearing which generated this order, the court gave the defendant (singular) five days from the date of the hearing to provide the addresses, failing which a default would be entered. When the five days passed and the addresses weren't provided, Network moved for entry of default against both defendants. The next day, Network received what it felt was a wholly inadequate response to its interrogatories that requested the addresses of AVD's bookkeepers. At an April 7, 1989, hearing, the court granted Network's Motion for Default against both defendants....