Kiaer v. Friendship, Inc., s. 79-109
Decision Date | 13 November 1979 |
Docket Number | Nos. 79-109,79-270,s. 79-109 |
Citation | 376 So.2d 919 |
Parties | Ronald J. KIAER, Appellant, v. FRIENDSHIP, INC., a Delaware Corporation, and Malcolm C. Berman, Appellees. |
Court | Florida District Court of Appeals |
Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and Michael K. McLemore, Miami, for appellant.
A. P. Walter, Jr., Miami, for appellees.
Before HENDRY, HUBBART and NESBITT, JJ.
The crux of this consolidated appeal concerns the propriety of the trial court's having entered a default judgment against appellant/defendant, where appellant had had no notice and had earlier filed a responsive pleading in the cause. We reverse.
The suit filed by appellees seeking compensatory and punitive damages was based on allegations that appellant had failed to deliver good title to a yacht which he sold to appellees due to a prior outstanding boatyard bill of over $7,000.00. After two amended complaints were filed by appellees, Kiaer timely filed an answer and set forth several affirmative defenses including, Inter alia, that the buyer had knowledge of the lien at the time the purchase contract was entered into; that the buyer had reason to know that appellant-seller was purporting to sell only such right or title to the vessel as he possessed; that the buyer failed to notify the seller within a reasonable time after the buyer's discovery of the alleged breach of the warranty of title. The cause proceeded through discovery, trial dates were set and continuances granted both parties; ultimately, trial was set for the week of December 11, 1978. However, appellant's counsel filed a motion to withdraw as counsel and hearing was had in September, after which the court entered its order granting the withdrawal motion. The record reflects that appellant failed to appear at the non-jury trial scheduled for December 11, 1978, and based on his failure to appear personally and/or have legal representation, the trial court entered its order of final judgment awarding compensatory and punitive damages, as well as costs and expenses to Friendship, Inc. and Malcolm C. Berman. Thereafter in January of 1979, appellant, through present counsel, filed a motion to vacate the default judgment and/or for relief from judgment; the motion was accompanied by two supporting affidavits signed by appellant. The major assertions contained in the affidavits were:
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Duckworth v. Duckworth, 81-2018
...with granting applications for relief so as to permit a determination of the controversy upon the merits. Kiaer v. Friendship, Inc., 376 So.2d 919 (Fla. 3rd DCA 1979); McAlice v. Kirsch, 368 So.2d 401 (Fla. 3rd DCA 1979). The principle of liberality places a heavier burden on the party seek......
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Crocker Investments, Inc. v. Statesman Life Ins. Co., 87-294
...when required by the rules of civil procedure, causes the entrance of the default judgment to be improper. Kiaer v. Friendship, Inc., 376 So.2d 919 (Fla. 3d DCA 1979); Pan American World Airways, Inc. v. Gregory, 96 So.2d 669 (Fla. 3d DCA 1957). Although this error does not usually render t......
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Zettler v. Ehrlich
...as a paper is served before the default is actually entered, the rules required notice of the application. See Kiaer v. Friendship, Inc., 376 So.2d 919 (Fla. 3d DCA 1979); Gould v. Ruzakowski, 322 So.2d 567 (Fla. 3d DCA 1975). If, after receiving notice, the defendant then "plead or otherwi......
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EGF Tampa Associates v. Edgar V. Bohlen, G.F.G.M. A.G.
...as a paper is served before the default is actually entered, the rules required notice of the application. See Kiaer v. Friendship, Inc., 376 So.2d 919 (Fla. 3d DCA 1979); Gould v. Ruzakowski, 322 So.2d 567 (Fla. 3d DCA 1975). If, after receiving notice, the defendant then "plead or otherwi......