Fernandez-Aguirre v. Gall, FERNANDEZ-AGUIRR
| Decision Date | 25 February 1986 |
| Docket Number | No. 85-1043,FERNANDEZ-AGUIRR,A,85-1043 |
| Citation | 11 Fla. L. Weekly 505,484 So.2d 1286 |
| Parties | 11 Fla. L. Weekly 505 Humbertoppellant, v. Lilly GALL, Appellee. |
| Court | Florida District Court of Appeals |
David A. Donet, Coral Gables, for appellant.
Taylor, Brion, Buker & Greene and Arnaldo Velez, Miami, for appellee.
Before BARKDULL, BASKIN and JORGENSON, JJ.
On April 15, 1982, Lilly Gall sued her former employer, South American Institute, Inc., [Institute] for, inter alia, a breach of employment contract. On June 17, 1982, she filed a notice of lis pendens referring to real property which was owned by the Institute but was subject to a purchase money first mortgage held by Dr. Humberto Fernandez-Aguirre. Fernandez-Aguirre had recorded his mortgage prior to the initiation of Gall's action. After the notice of lis pendens had been filed by Gall, but before judgment on the contract action had been entered, Fernandez-Aguirre successfully prosecuted a foreclosure action against the Institute, bought the property at the foreclosure sale, and received a certificate of title. Gall was not a party to the foreclosure action.
Gall prevailed on the contract action. Her attempt to levy on the property was unsuccessful because the Institute no longer owned the property. Consequently, Gall initiated supplementary proceedings seeking to implead Fernandez-Aguirre as a third-party defendant. Gall alleged that the property was subject to her notice of lis pendens at the time Fernandez-Aguirre filed his foreclosure action. After Fernandez-Aguirre failed to respond to the Rule To Show Cause for Impleading Third Party, the court entered a default against him and impleaded him as a third-party defendant. In his Motion To Set Aside Default, Fernandez-Aguirre informed the court that he intended to re-foreclose on the mortgage "to establish the fact that the interest of [Gall's] is subordinate and inferior to [his] claims...." The court did not set aside the default but instead granted Gall's Motion for Entry of Final Judgment and entered a final judgment in favor of Gall. We reverse.
The final judgment entered upon the default cannot stand because it is clear from the record, in particular, from Gall's own Motion for Impleader, that there was no proper basis upon which Gall could be granted relief. As the supreme court stated in North American Accident Ins. Co. v. Moreland, 60 Fla. 153, 157, 53 So. 635, 637 (1910):
A judgment by default properly entered against parties sui juris operates as an admission by the defendants of...
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