Joe-Lin, Inc. v. LRG Restaurant Group, Inc.
| Decision Date | 11 July 1997 |
| Docket Number | JOE-LI,No. 97-289,INC,97-289 |
| Citation | 696 So.2d 539 |
| Parties | 22 Fla. L. Weekly D1701 and Tibby's, Inc., Appellants, v. LRG RESTAURANT GROUP, INC., et al., Appellees. |
| Court | Florida District Court of Appeals |
William R. Barker, Orlando, for Appellants.
Mario A. Garcia, Orlando, for Appellees.
This is an appeal from an order setting aside a default. Because appellees failed to file a proper response and failed to appear at the hearing for entry of default, we quash the order.
Appellants filed a complaint against LRG Restaurant Group (hereinafter "LRG") and White Butter Bean Restaurants (hereinafter "WBB") alleging breach of lease. In addition, appellants maintained that WBB failed to pay a contractor for certain improvements and as a result the contractor filed a construction lien. They also contend that $130,000 in personal property was missing from the site. Additionally, appellants sought to pierce the corporate veil and hold LRG responsible for WBB's debts.
Appellants served the summons and complaint on LRG and WBB on September 4, 1996. Gerald Parker, an LRG corporate officer, replied for LRG on September 23 at 6:13 p.m. by fax. The letter was his written response to the complaint and he advised appellants that LRG and WBB were two separate corporations and thus LRG was not responsible for WBB's debts. Appellants' attorney received a certified copy by mail on September 26. The record indicates LRG never filed a copy of the letter with the court. On September 27, appellants filed a motion to enter default alleging it had been more than twenty days and neither LRG or WBB had filed any responsive pleading. They also noticed LRG and WBB of a hearing for October 8. LRG and WBB did not attend the hearing. The trial judge entered an order of default against LRG and WBB on the day of the hearing. Appellants next filed a notice of hearing to be heard on the entry of final judgment and attorney's fees. WBB and LRG filed a verified motion to vacate default. They claimed each defendant could establish excusable neglect and a meritorious defense. The trial court held a hearing on January 6, 1997 and set aside the default.
Florida courts have a strong public policy preference to decide cases on their merits. Venero v. Balbuena, 652 So.2d 1271 (Fla. 3d DCA 1995). However, it is an abuse of discretion for the trial court to set aside a default judgment where the defendant has not demonstrated excusable neglect and a meritorious defense. Armando v. Plazza, 658 So.2d 1169 (Fla. 2d DCA 1995).
LRG maintains that its letter to appellants, although defective, constituted an answer thereby requiring appellants to provide "notice of defect." We disagree. A pleading signed by a corporate officer who is not a licensed attorney is a nullity and has no effect. Daytona Migi Corp. v. Daytona Automotive Fiberglass, Inc., 417 So.2d 272 (Fla. 5th DCA 1982); Nicholson Supply Co. v. First Fed. Sav. & Loan Ass'n of Hardee County, 184 So.2d 438 (Fla. 2d DCA 1966); but see Telepower Communications, Inc. v. LTI Vehicle Leasing Corp., 658 So.2d 1026 (Fla. 4th DCA 1995); Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So.2d 247 (Fla. 3d DCA 1985).
Further, we conclude that appellees failed to establish excusable neglect. LRG maintains that it demonstrated excusable neglect through its mistaken belief that its letter mooted appellants' motion to enter default. The...
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