13 Fla. L. Weekly Supp. 33a
Insurance — Commercial property — Default — Where insurer filed motion to dismiss and/or compel appraisal, trial court denied motion to dismiss and granted insured’s motion to enforce settlement agreement, and thirteen days later trial court entered final judgment for insured without insurer having filed an answer or affirmative defenses, lack of responsive pleading by insurer makes final judgment a default final judgment, and trial court erred in entering judgment without providing insurer with notice of any application for default and opportunity to respond — Remand with instructions to allow insurer to file answer and affirmative defenses
ESSEX INSURANCE COMPANY, Appellant, vs. DANIELLE AUTO CENTER, INC., d/b/a SHANI MANAGEMENT, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-582 AP. October 14, 2005. An appeal from the County Court in and for Miami-Dade County, Linda Singer Stein, Judge. Counsel: Jenelle E. La Chuisa, Law Offices of Clinton D. Flagg, P.A., for Appellant. Leslie J. Schreiber, for Appellee.
(Before THOMAS S. WILSON, JR., PAUL SIEGEL and MARK KING LEBAN, JJ.)
(THOMAS S. WILSON, J.) Appellee Danielle Auto Center, Inc. is an auto repair shop. Danielle was insured by Appellant Essex Insurance Co., under a commercial property insurance policy. Danielle made a claim under the policy. To substantiate its claim, Danielle submitted a written inventory which itemized its losses and indicated that they totaled $7,909.62. This inventory was unsigned.
On February 23, 2004, Danielle filed a four count complaint against Essex. Count I was captioned “Motion to Enforce Settlement.” In it, Danielle asserted that the parties had entered into a settlement agreement in which Essex had agreed to reimburse Danielle for its loss. Count II was for breach of the insurance contract. Count III sought to compel an appraisal and Count IV sought the appointment of a neutral arbitrator under Fla. Stat. Section 682.01 because “Plaintiff and Defendant have been unable to agree on the amount of loss.”
On April 1, 2004, Essex filed a “Motion to Dismiss and/or Compel Appraisal.” In it, Essex asserted that “on January 19, 2004” it had “offered to pay Plaintiff $2,592.56 for the documented items minus the $500.00 deductible, leaving a net payment of $2,092.56.” On the same day, Essex filed a notice of hearing on its motion, noticing the hearing for June 1, 2004. This hearing was reset to July 8, 2004, and reset yet again for July 22, 2004. The July 22, 2004 hearing was also reset, and rescheduled for September 2, 2004. The September 2, 2004 hearing was itself reset and rescheduled for October 20, 2004. Danielle cross noticed a hearing on its Motion to Enforce Settlement and to Compel Appraisal, to be held on October 20 as well.
On October 20, 2004, a hearing was held. There is no transcript of this hearing; however the trial court entered an order granting Danielle’s motion to enforce settlement and denying Essex’s motion to dismiss. Thirteen days later, on November 2, 2004, the trial court entered final judgment for Danielle. Essex appeals from this final judgment, asserting that the trial court erred when it entered final judgment without allowing Essex to answer and defend the allegations of the complaint. We agree and reverse.
Fla. R. Civ. P. 1.140(b) authorizes the filing of a motion to dismiss. Fla. R. Civ. P. 1.140(a)(2) provides that upon the court’s denial of a motion to dismiss, the defendant has ten days to file a responsive pleading “unless a different time is fixed by the court.” Since the court’s order was silent as to a time period for filing an answer, Essex would have had ten days following the denial of its motion to dismiss, within which to file an answer. Although the trial court did not enter the final judgment until 13 days after the denial of Essex’s motion to dismiss, the fact remains that at the time the final judgment was entered, there was no responsive pleading by Essex.
The absence of a responsive pleading by the defendant, in essence, makes the final judgment entered by the trial court a default final judgment. Prior to entry of a default final judgment, the losing party is entitled to notice. A party who files any paper as provided in Fla. R. Civ. P. 1.500 (b) is entitled to notice of any application for default and a reasonable time to respond prior to the entry of default. Strader v. Grothe, 2005 WL 1705139 (Fla. 5th DCA July 22, 2005) [30 Fla. L. Weekly D1771b]; Cohen v. Barnett Bank of S. Fla., N.A., 433 So. 2d 1354 (Fla. 3d DCA 1983).
The trial court’s failure to provide such notice to Essex requires this Court to set aside the final judgment and remand this cause to the trial court, with instructions to provide Essex an opportunity to file an answer and affirmative defenses and to proceed with the cause accordingly. (LEBAN, J., concurring.)
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(SIEGEL, J. concurs in the result, with the following brief analysis.) It appears that the lower court entered a summary judgment for the Plaintiff on Count I of the complaint without any motion for summary judgment or notice of hearing on such a motion. Count I entitled “Motion to Enforce Settlement” was still a substantive claim that needed to be tried or disposed of by summary judgment, not simply set for hearing as if it were only a motion.
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