Safetitle, Inc. v. Fidelity Nat. Title Ins., 97-0135
| Citation | 701 So.2d 565 |
| Decision Date | 29 August 1997 |
| Docket Number | No. 97-0135,97-0135 |
| Parties | 22 Fla. L. Weekly D2046 SAFETITLE, INC., f/k/a KGH, Inc., Appellant, v. FIDELITY NATIONAL TITLE INSURANCE, etc., et al., Appellee. |
| Court | Court of Appeal of Florida (US) |
Clifford L. Adams and John W. Dill of Rumberger, Kirk & Caldwell, Orlando, for Appellant.
Timothy M. Williams of Potter, McClelland, Marks & Healy, P.A., Melbourne, for Appellee.
Safetitle, Inc., appeals the nonfinal order entered by the trial court denying its motion to set aside the default judgment entered by the clerk in favor of Steven Lumbert due to Safetitle's failure to serve or file any paper in the action. 1 Because the record does not support Safetitle's claim that the trial court abused its discretion in denying the motion, we affirm.
The litigation in the trial court stemmed from a real estate closing which was concluded without the title insurer or the closing agent discovering that structures located on the purchaser's property were subject to a submerged land lease which encumbered the title to the property. The litigation began when National Title Insurance Co. of Pennsylvania (Fidelity) filed a declaratory judgment action against Steven Lumbert, the purchaser of the subject property, regarding its liability to Lumbert. Lumbert responded by filing an answer and a counterclaim against Fidelity, as well as a third-party complaint against Safetitle, the closing agent. The third-party complaint was served on March 3, 1996. In his pleading, Lumbert asserted claims against both Fidelity and Safetitle for breach of an implied contract, breach of a fiduciary duty and negligence, and a separate claim against Fidelity for breach of his title insurance contract. Fidelity responded to the counterclaim by filing a timely motion to dismiss. However, Safetitle did not respond to Lumbert's third-party complaint.
On April 25, 1996, fifty-two days after service of the third-party complaint, Lumbert moved the clerk to enter a default against Safetitle for its failure to file or serve any paper in the action. The motion was filed pursuant to rule 1.500, Florida Rules of Civil Procedure, which provides in pertinent part:
RULE 1.500 DEFAULTS AND FINAL JUDGMENTS THEREON
(A) By the Clerk. When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper.
The clerk entered the default the next day. An additional eighteen days passed before Safetitle moved the trial court to set aside the clerk's default.
Safetitle asserted that the default should be set aside pursuant to rule 1.540, Florida Rules of Civil Procedure, which provides in part that the trial court may relieve a party from an adverse judgment for reasons of "mistake, inadvertence, surprise, or excusable neglect." Prior to ruling on Safetitle's motion to set aside the default, the trial court considered Fidelity's pending motion to dismiss Lumbert's counterclaim. The court dismissed without prejudice Lumbert's claim for implied contract and breach of fiduciary duty, and dismissed with prejudice the count for negligence. As a result of this ruling, Lumbert filed an amended counterclaim against Fidelity and an amended third-party complaint against Safetitle. The allegations in the amended third-party complaint were the same as those set forth in Lumbert's original third-party complaint. Safetitle responded to the amended third-party complaint by filing both an answer and a motion to dismiss.
Thereafter, the trial court issued an order on Safetitle's motion to vacate the default. The court denied the motion, explaining:
The affidavits and court file show that the complaint was served on [Safetitle] on March 19, 1996, that a copy was mailed to said parties' insurance adjustor by defendant's counsel on March 19, 1996, and that defendant's counsel called the insurance adjustor on or about April 18, 1996, prior to moving for entry of the default. Based on the foregoing, the court finds that [Safetitle] has not shown excusable neglect, and that [Safetitle] was negligent in failing to file a responsive pleading within twenty days of the date of service, and [Safetitle] was further negligent in failing to respond to the defendant's counsel courtesy call on April 18, 1996.
Safetitle appeals this ruling, arguing that the trial court abused its discretion in refusing to vacate the default because (1) Lumbert had waived his right to enforce the clerk's default by filing his amended third-party complaint, and (2) Safetitle had demonstrated excusable neglect in failing to respond to the initial third-party complain...
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