On August 04, 2017 a
Order
was filed
involving a dispute between
Depau, Vincenzo,
and
Board Of Miami-Dade County Commissioners,
College Health Ii Gp Inc,
Feeney, Dwight J,
Fl Dept Of Revenue,
Harding Investments Llc,
Harris, Layne,
Miami Design Preservation League,
Ocean Bank,
Raijman Realty Inc,
Rose, Ivor H,
Starr, Rita,
Stengel, Paul,
Stern, Layne Harris,
Stern, Michael,
United States Of America Dept Of Justice,
United States Of America Dept Of The Treasury,
Zamyatin, Semone,
for RPMF -Commercial ($250,000 or more)
in the District Court of Miami-Dade County.
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IN THE CIRCUIT COURT FOR THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
COMPLEX BUSINESS LITIGATION
DIVISION
CASE NO.: 2017-18931-CA-01 (20)
VINCENZO DEPAU
Plaintiffs,
v.
MICHAEL STERN et al.
Defendants
__________________________________/
ORDER ON DEFENDANT, COLLEGE HEALTH II GP, RENEWED
MOTION TO VACATE COURT DEFAULT
THIS MATTER came before this Court on Defendant, COLLEGE HEALTH II GP’S
(“College Health”) renewed motion to vacate default. The Court having considered the record,
having reviewed the motion and response, having heard argument of counsel, and having
considered the applicable law, makes the following findings:
Plaintiff commenced this action on August 4, 2017, alleging breaches of multiple
promissory notes. On September 4, 2018, Plaintiff filed its Third Amended Complaint. On April
29, 2019, a Clerk’s default was entered against College Health. Plaintiff alleges that College
Health was aware of this action and deliberately avoided service and was ultimately served by
publication. College Health previously moved to vacate this default. On June 3, 2019, the Court
conducted a two-hour evidentiary hearing and thereafter, denied College Health’s motion to vacate
default. At this same hearing, the Court also entered a default final judgment against College
Health in favor of Plaintiff. Defendant alleges it was completely unaware of this action until a
related action (2019-2425), in which the Defendant was a party, was transferred to this Court’s
division. Defendant filed a notice of appeal. The Third District Court of Appeals relinquished
jurisdiction back to this Court for the limited purpose of allowing this Court to determine if the
final judgment is void pursuant to Fla. R. Civ. P. 1.540.
This Court is not deciding whether the Defendant was properly served. That issue was
previously addressed by the predecessor judge and is now before the Appellate Court. This Court
is simply determining whether the Plaintiff had knowledge the Defendant intended to defend its
interest in this case, thereby requiring Plaintiff to serve Defendant with notice of the application
for default prior to seeking default.
It is well settled that a “default is not appropriate where the Plaintiff knows the Defendant
is represented by counsel who intends to assert matters in defense of the cause of action.” Gulf
Maint. & Supply Inc., v. Barnett Bank of Tallahassee, 543 So. 2d 813, 815 (Fla. 1st DCA 1989).
Where the Plaintiff has “knowledge that the Defendant was represented, his counsel should contact
the attorney known to be representing a defendant to determine whether the latter intends to
proceed in the matter before causing a default to be entered.” M.W. v. SPCP Group V, LLC, 163
So. 3d 518,521 (Fla. 3 DCA 2015). Where the plaintiff is aware that a defendant is represented
by counsel, but, nevertheless, obtains an ex-parte default without providing notice to the defendant
or discussing the issue with defendant’s counsel, the judgment arising from the default is void.
Gulf Maint. & Supply Inc. 543 So. 2d at 817.
One of the issues that is present in this litigation is whether the fact that the Plaintiff learned
that Defendant was represented by counsel in a related case rather than from any circumstances
that arose in the instant proceedings extinguishes any requirement that the Plaintiff’s attorney give
notice to counsel for the Defendant prior to seeking a default in the instant case. This Court
concludes that how counsel gains knowledge of the fact that a defendant was represented by
counsel and intends to assert matters in defense of a cause of action is not of any great significance
to the issue of whether Plaintiff’s attorney is required to give notice to counsel for the Defendant
prior to seeking a default. The more relevant inquiry is whether--prior to filing the motion for
default--Plaintiff had knowledge (from whatever source) that Defendant was represented by
counsel and intended to defend its interest. To this question, this Court must conclude that Plaintiff
did not have knowledge that Defendant intended to defend itsinterest prior to the filing of the
request for default.
Counsel for DePau (Plaintiff in the instant case) appeared in the related case, 2019-
2425CA01 on February 28, 2019. On March 8, 2019, DePau filed a motion for default against
College Health in the instant case. On March 27, 2019, counsel for College Health appeared in
the related case, 2019-2425CA01. It is important to note that counsel for College Health only filed
a notice of appearance in the related case. No expression of intent to defend on the merits in the
instant case or in the related case was ever provided by counsel for College Health to counsel for
DePau. On April 29, 2019, the Court entered an ex-parte default against College Health in the
instant matter. Based upon the foregoing facts, it is
ORDERED AND ADJUDGED that the record evidence before this Court is insufficient
for this Court to conclude that the default obtained by Plaintiff against Defendant was improper.
Other than the filing of a notice of appearance in a “related” case, after the application for default
was filed, there is no evidence in this record or in the record of the related case to support the
conclusion that the Plaintiff knew the Defendant intended to defend in the instant case. There was
no correspondence between the Parties. There was no filing of an answer or responsive pleading,
or attempt to settle the case. There was only a notice of appearance in the related case that was
filed after DePau filed his motion for default against College Health in the instant case. Therefore,
the Defendant’s motion to void the default pursuant to Fla. R. Civ. P. 1.540 is denied.
DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 08/14/20.
_________________________________________
WILLIAM THOMAS
CIRCUIT COURT JUDGE
No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT
The parties served with this Order are indicated in the accompanying 11th Circuit email
confirmation which includes all emails provided by the submitter. The movant shall
IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or
hand-delivery, to all parties/counsel of record for whom service is not indicated by the
accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court.
Signed original order sent electronically to the Clerk of Courts for filing in the Court file.
Preview
IN THE CIRCUIT COURT FOR THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA COMPLEX BUSINESS LITIGATION DIVISION CASE NO.: 2017-18931-CA-01 (20) VINCENZO DEPAU Plaintiffs, v. MICHAEL STERN et al. Defendants __________________________________/ ORDER ON DEFENDANT, COLLEGE HEALTH II GP, RENEWED MOTION TO VACATE COURT DEFAULT THIS MATTER came before this Court on Defendant, COLLEGE HEALTH II GP’S (“College Health”) renewed motion to vacate default. The Court having considered the record, having reviewed the motion and response, having heard argument of counsel, and having considered the applicable law, makes the following findings: Plaintiff commenced this action on August 4, 2017, alleging breaches of multiple promissory notes. On September 4, 2018, Plaintiff filed its Third Amended Complaint. On April 29, 2019, a Clerk’s default was entered against College Health. Plaintiff alleges that College Health was aware of this action and deliberately avoided service and was ultimately served by publication. College Health previously moved to vacate this default. On June 3, 2019, the Court conducted a two-hour evidentiary hearing and thereafter, denied College Health’s motion to vacate default. At this same hearing, the Court also entered a default final judgment against College Health in favor of Plaintiff. Defendant alleges it was completely unaware of this action until a related action (2019-2425), in which the Defendant was a party, was transferred to this Court’s division. Defendant filed a notice of appeal. The Third District Court of Appeals relinquished jurisdiction back to this Court for the limited purpose of allowing this Court to determine if the final judgment is void pursuant to Fla. R. Civ. P. 1.540. This Court is not deciding whether the Defendant was properly served. That issue was previously addressed by the predecessor judge and is now before the Appellate Court. This Court is simply determining whether the Plaintiff had knowledge the Defendant intended to defend its interest in this case, thereby requiring Plaintiff to serve Defendant with notice of the application for default prior to seeking default. It is well settled that a “default is not appropriate where the Plaintiff knows the Defendant is represented by counsel who intends to assert matters in defense of the cause of action.” Gulf Maint. & Supply Inc., v. Barnett Bank of Tallahassee, 543 So. 2d 813, 815 (Fla. 1st DCA 1989). Where the Plaintiff has “knowledge that the Defendant was represented, his counsel should contact the attorney known to be representing a defendant to determine whether the latter intends to proceed in the matter before causing a default to be entered.” M.W. v. SPCP Group V, LLC, 163 So. 3d 518,521 (Fla. 3 DCA 2015). Where the plaintiff is aware that a defendant is represented by counsel, but, nevertheless, obtains an ex-parte default without providing notice to the defendant or discussing the issue with defendant’s counsel, the judgment arising from the default is void. Gulf Maint. & Supply Inc. 543 So. 2d at 817. One of the issues that is present in this litigation is whether the fact that the Plaintiff learned that Defendant was represented by counsel in a related case rather than from any circumstances that arose in the instant proceedings extinguishes any requirement that the Plaintiff’s attorney give notice to counsel for the Defendant prior to seeking a default in the instant case. This Court concludes that how counsel gains knowledge of the fact that a defendant was represented by counsel and intends to assert matters in defense of a cause of action is not of any great significance to the issue of whether Plaintiff’s attorney is required to give notice to counsel for the Defendant prior to seeking a default. The more relevant inquiry is whether--prior to filing the motion for default--Plaintiff had knowledge (from whatever source) that Defendant was represented by counsel and intended to defend its interest. To this question, this Court must conclude that Plaintiff did not have knowledge that Defendant intended to defend itsinterest prior to the filing of the request for default. Counsel for DePau (Plaintiff in the instant case) appeared in the related case, 2019- 2425CA01 on February 28, 2019. On March 8, 2019, DePau filed a motion for default against College Health in the instant case. On March 27, 2019, counsel for College Health appeared in the related case, 2019-2425CA01. It is important to note that counsel for College Health only filed a notice of appearance in the related case. No expression of intent to defend on the merits in the instant case or in the related case was ever provided by counsel for College Health to counsel for DePau. On April 29, 2019, the Court entered an ex-parte default against College Health in the instant matter. Based upon the foregoing facts, it is ORDERED AND ADJUDGED that the record evidence before this Court is insufficient for this Court to conclude that the default obtained by Plaintiff against Defendant was improper. Other than the filing of a notice of appearance in a “related” case, after the application for default was filed, there is no evidence in this record or in the record of the related case to support the conclusion that the Plaintiff knew the Defendant intended to defend in the instant case. There was no correspondence between the Parties. There was no filing of an answer or responsive pleading, or attempt to settle the case. There was only a notice of appearance in the related case that was filed after DePau filed his motion for default against College Health in the instant case. Therefore, the Defendant’s motion to void the default pursuant to Fla. R. Civ. P. 1.540 is denied. DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 08/14/20. _________________________________________ WILLIAM THOMAS CIRCUIT COURT JUDGE No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court. Signed original order sent electronically to the Clerk of Courts for filing in the Court file.