Eastern Koex Co., Ltd. v. Bonanza Import & Export, Inc., s. 77-186

• Decision Date: 05 July 1978
• Docket Number: Nos. 77-186,77-187 and 77-188,s. 77-186
• Citation: 360 So.2d 153
• Parties: EASTERN KOEX COMPANY, LTD., Appellant, v. BONANZA IMPORT AND EXPORT, INC., Appellee.
• Court: Florida District Court of Appeals

Page 153

360 So.2d 153

EASTERN KOEX COMPANY, LTD., Appellant, v. BONANZA IMPORT AND EXPORT, INC., Appellee.

Nos. 77-186, 77-187 and 77-188.

District Court of Appeal of Florida,Third District.

July 5, 1978.

Brian R. Hersh, Miami, for appellant.

Horton, Perse & Ginsberg and Arnold R. Ginsberg, Carl L. Laks, Miami, for appellee.

Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

CARROLL, Associate Judge.

The appellant, Eastern Koex Company, Ltd., filed an action against the appellee, Bonanza Import and Export, Inc., for damages for alleged breach of a contract for sale of merchandise. The defendant filed an answer incorporating a counterclaim for damages for alleged defects in the purchased merchandise. In the answer and counterclaim the defendant demanded jury trial on all issues in the action. Pursuant to a consent order the defendant filed an amended counterclaim, in which such demand for a jury trial was repeated. The plaintiff, through counsel, moved to dismiss and to strike the amended counterclaim. Before hearing thereon plaintiff's counsel withdrew. Thereafter the court denied plaintiff's motions and granted plaintiff twenty days within which to answer the amended counterclaim. When plaintiff failed to file an answer within the time allowed, the defendant moved for entry of default on the amended counterclaim, and a default order was entered. Also, an order was entered dismissing plaintiff's complaint for failure of the plaintiff to file a non-resident cost bond.

A notice was given to plaintiff of a setting of the cause for non-jury trial on the unliquidated damages claimed in the amended counterclaim. The non-jury trial on damages was held, at which the counterdefendant was not present. For proof the counterclaimant filed an affidavit. Judgment on the counterclaim was entered against the counterdefendant, Eastern, for damages in the amount of $21,204.77, with provision for execution to issue.

Plaintiff learned of the judgment when execution was sought, and thereafter filed a motion, with which an answer was submitted, seeking to vacate the default on certain stated grounds, and moved under Florida Rules of Civil Procedure 1.540(b) to have the judgment set aside for failure of the trial on damages to have been held before a jury. Those motions of the counterdefendant came on for hearing before an alternate judge while the judge who had entered the default and judgment was absent on vacation. The judge who heard the matter denied the plaintiff's motion to vacate the default, but granting the motion to set aside the judgment ordered that the judgment be set aside, and as grounds for that ruling stated: "The court finds that the motion has merit and the final judgment, as was entered, is in violation of the plaintiff's right to a proper trial by jury with substantial competent evidence." In that order the court required the defendant to file a bond in the amount of $15,000.00.

After return of the first judge from vacation, the counterclaimant moved to vacate the order by which the judgment had been set aside. After hearing thereon the court entered an order vacating the prior order which set aside the judgment, except for the provision therein requiring the posting of a bond, and the court made provision for the filing of an additional $7,000 bond by the counterdefendant in the event of appeal by the latter. Eastern appealed.

The order vacating the final judgment, which had been entered on a non-jury trial on issues relating to the unliquidated damages, was eminently correct, on authority of Loiselle v. Gladfelter, 160 So.2d 740 (Fla. 3d DCA 1964); Bader Bros. Van Lines, Inc. v. Jay, 183 So.2d 867 (Fla. 2d DCA 1966); and Grappell v. Lauderdale River Park Estates, 126 So.2d 574 (Fla. 3d DCA 1961). We hold, as contended for by appellan...