Emami v. Progressive Brands, Inc.

• Decision Date: 06 September 2017
• Docket Number: No. 3D16–2227,3D16–2227
• Court: Florida District Court of Appeals
• Parties: Iman EMAMI, Appellant, v. PROGRESSIVE BRANDS, INC., Appellee.

225 So.3d 983

Iman EMAMI, Appellant,

v.PROGRESSIVE BRANDS, INC., Appellee.

No. 3D16–2227

District Court of Appeal of Florida, Third District.

Opinion filed September 6, 2017

Weiss Serota Helfman Cole & Bierman, P.L., and Roger S. Kobert, for appellant.

Gerson M. Joseph, P.A., and Gerson M. Joseph (Weston), for appellee.

Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.

SCALES, J.

Appellant, defendant below, Iman Emami appeals a final default judgment entered in favor of appellee, plaintiff below, Progressive Brands, Inc. ("Progressive"). Because the trial court failed to give Emami an opportunity to contest damages before entering the final default judgment, we hold that the judgment is void and reverse.

Relevant Facts and Procedural Background

In November 2013, Progressive filed the instant action against several defendants in the Miami–Dade Circuit Court, including Emami. As the case progressed, Progressive dismissed one defendant; another corporate defendant, Eastgate Tobacco Company, LLC, stipulated to entry of a $247,620.88 judgment against it. The only claims then remaining were Progressive's claims against Emami for fraud (count II) and to impose individual liability on Emami by piercing the corporate veil of Eastgate (count IV).¹ Emami's initial lawyer withdrew from the case in August 2014, and in November 2014, Emami's new lawyer, Kramer Huy, P.A. ("Kramer") filed an Answer and Affirmative Defenses to Progressive's Amended Complaint.

In July 2015, Progressive served Emami with interrogatories, requests for admissions and requests for production. Pursuant to Florida Rule of Civil Procedure 1.080(a) and Florida Rule of Judicial Administration 2.516(b),² Progressive served Emami with this discovery by serving Kramer. The record reflects that Kramer forwarded the discovery to Emami via e-mail.³ The record also reflects that Progressive's counsel requested Kramer to provide dates for Emami's deposition. No discovery responses were ever provided to Progressive, and Kramer never provided deposition dates to Progressive's counsel.

On September 2, 2015, Kramer informed Progressive's counsel of Kramer's intent to withdraw from representation of Emami. That same day, Progressive filed a motion to compel discovery and for sanctions, noting therein that Kramer intended to withdraw as Emami's counsel, and that Progressive would not set the September 2 motion for hearing until after Kramer had a reasonable time both to inform Emami of Progressive's September 2 motion, and to file his motion to withdraw. On September 21, 2015, Progressive served Kramer with a notice setting an October 5, 2015 hearing date on its September 2 motion. Also on September 21, Kramer filed his motion to withdraw as Emami's counsel, but did not set that motion for hearing.

On October 2, 2015, Progressive's counsel purportedly sent Kramer an e-mail asking if Emami would be opposing Progressive's September 2 motion, and Kramer purportedly responded to this e-mail notifying Progressive that Emami would not be opposing Progressive's September 2 motion.⁴ Based on Kramer's representation, Progressive's counsel dispensed with the October 5, 2015 hearing, and, instead submitted to the trial court an Agreed Order Granting Plaintiff's Motion to Compel. This order, signed by the trial court on October 5, required Emami to provide the discovery responses and deposition dates to Progressive's counsel within ten days. No sanctions were imposed in this October 5 Agreed Order.

Having received neither the discovery responses nor deposition dates from Emami (or Kramer), on October 21, 2015, Progressive moved for a default against Emami as a sanction for failing to comply with the trial court's October 5 Agreed Order. That same day, Progressive noticed its October 21 motion for default for a November 2, 2015 hearing.

Prior to the November 2 hearing, on October 29, 2015, Progressive's counsel sent Kramer an e-mail asking whether Kramer will be setting his motion to withdraw for hearing, and whether Kramer will be attending the November 2, 2015 hearing to oppose Progressive's motion. Later on October 29, Kramer's office responded to the e-mail by stating: "Mr. Kramer will not be attending Monday's hearing and he has no objection to your motion for default."

At the November 2, 2015 hearing,⁵ the trial court entered an order granting Progressive's motion for default, therein (i) finding Emami's conduct was deliberate and contumacious, (ii) entering a default against Emami,⁶ (iii) stating that damages would be determined separately at a hearing to be held on a later date, and (iv) inviting Progressive to file the appropriate motion to fix damages so that a final default judgment could be entered.⁷

Later on November 2, 2015, Progressive filed a Motion for Final Judgment after Default, in which Progressive sought $263,287.04 in damages, plus costs and interests. Progressive's November 2 motion also included an affidavit of damages (and other allegations) from Progressive's principal. That same day, Progressive noticed its November 2 motion for hearing on November 9, 2015.

For reasons that are not clear from the record, the following day, on November 3, 2015, Progressive filed a second Motion for Final Judgment after Default that is identical to the motion Progressive filed the prior day, except that the word "UNOPPOSED" was added as the first word to the motion's caption. Similarly, on November 4, 2015, for reasons that are again unclear, Progressive filed a third, identical Motion for Final Judgment after Default that also included the word "UNOPPOSED" as the caption's first word. Based on Kramer's October 29 email to Progressive's counsel, in each of its three motions seeking final default judgment, Progressive characterized its October 21 motion for default as "unopposed."

On November 5, 2015, without conducting the hearing which had been set for November 9—the one expressly referenced in its November 2 order granting Progressive's motion for default—the trial court entered a final default judgment against Emami in the principal amount of $263,287.04, plus costs and interests. While the judgment contains no insight as to why the previously noticed November 9 hearing was cancelled, the trial court apparently dispensed with the November 9 hearing after being "informed" of the alleged "UNOPPOSED" nature of the final default judgment.

Later that same day, Emami's new counsel, Weiss Serota Helfman Cole & Bierman, P.L. ("Weiss Serota"), filed its notice of appearance as Emami's co-counsel. Weiss Serota's notice also included a letter to the trial judge informing her that Emami had never authorized Kramer to consent to entry of any orders, including an order granting a default against Emami. Apparently unaware that the trial court had already signed the final default judgment provided to her by Progressive, the letter further urged the trial court "not to enter the proposed ‘unopposed’ judgment against Mr. Emami " as Progressive's Unopposed Motion for Judgment after Default was, indeed, opposed.

On November 20, 2015, Emami, through his new counsel, Weiss Serota,⁸ filed a motion seeking rehearing and to vacate the November 5, 2015 final default judgment. This motion argued that the final default judgment should be vacated because it was the result of excusable neglect. The motion also stressed that "Progressive's motion for final [default] judgment was entered just hours before undersigned counsel could file a notice of appearance and submit a letter via e-courtesy imploring the Court not to enter the contested judgment ...." Emami's affidavit was appended to the motion. In it, Emami asserted, among other things, that, "I did not know or understand until very recently, when I received a motion by Mr. Kramer to withdraw as my lawyer, that an order punishing me was signed by this Court. I also did not know that I was being punished for failing to answer questions, or that that was even a possibility. None of this was explained to me, as far as I know."

On June 6, 2016, the trial court conducted a hearing on Emami's November 20, 2015 rehearing/vacatur motion at which Emami's counsel argued, for the first time, that the final default judgment was void because Kramer lacked the authority to consent to the entry of either the November 2, 2015 default or the November 5, 2015 final default judgment. The trial court ordered additional briefing on this issue, and, on August 23, 2016, entered an order denying Emami's motion for rehearing and to vacate the November 5, 2015 final default judgment.

Emami appeals both the final default judgment and the trial court's denial of his motion for rehearing and to vacate same.

Standard of Review

This Court reviews the denial of a motion to vacate a final judgment for an abuse of discretion; however, where the final judgment is void, the lower court has no discretion and is obligated to vacate the judgment. See Vercosa v. Fields, 174 So.3d 550, 552 (Fla. 4th DCA 2015). Whether a judgment is void is a question of law reviewed de novo. Infante v. Vantage Plus Corp., 27 So.3d 678, 680 (Fla. 3d DCA 2009) ("The standard of review of an order that vacates a final judgment by default as void for a complaint's failure to state a cause of action is de novo.").

Analysis

It is well settled in Florida that a defaulting party shall be afforded the opportunity to contest damages. See Fla. R. Civ. P. 1.440(c) ("In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule...