78 So. 3d 98
Fla. Dist. Ct. App.2012Background
- Appellants John Baleanu and Transilvania, Inc. were defendants in a breach of contract suit.
- Initially they shared representation and filed a joint answer, then counsel withdrew.
- Both parties were given 30 days to secure new counsel, but remained unrepresented for over a year by the bench trial.
- Transilvania, Inc. was defaulted for failing to appear with counsel; Baleanu proceeded to trial on the merits.
- A final judgment awarded both defendants joint and several liability for $25,000, which the defendants appealed.
- The court affirmed as to Baleanu but reversed and remanded as to Transilvania, Inc. due to improper default procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the default against Transilvania improper due to lack of prior notice? | Transilvania argues the default was entered without proper notice and opportunity to be heard. | Transilvania asserts the default should be vacated and proceedings continued with notice and hearing. | Default reversed and remanded for proper notice and proceedings. |
| Does the missing bench-trial transcript bar appellate review of Baleanu's challenges? | Baleanu contends issues are reviewable, but appellant failed to provide the trial transcript. | Baleanu's position relies on review despite absence of transcript; court should allow review only with transcript. | Appellate review precluded due to lack of transcript. |
Key Cases Cited
- Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979) (transcript and evidentiary issues limit appellate review on appeal)
- Powers v. Gentile, 662 So.2d 374 (Fla. 5th DCA 1995) (default procedures when a defendant fails to appear for trial)
- Neder v. Greyhound Fin. Corp., 592 So.2d 1218 (Fla. 1st DCA 1992) (default entered absent proper notice improper)
- Maranto v. Dearborn, 687 So.2d 940 (Fla. 3d DCA 1997) (reversal where prior notice required by rule 1.500 not afforded)
- Molina v. Watkins, 824 So.2d 959 (Fla. 3d DCA 2002) (ore tenus motion does not constitute prior notice of default judgment)
- Belcher v. Ferrara, 511 So.2d 1089 (Fla. 3d DCA 1987) (default cannot be entered without notice even if failure to appear)