MICHAEL A. ETIENNE v. MARY ESTIME IRVIN, etc.

• Court: District Court of Appeal of Florida
• Decided: November 18, 2020
• Docket: 20-0941
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed November 18, 2020. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-0941 Lower Tribunal No. 20-7239 ________________

Michael A. Etienne, Appellant,

vs.

Mary Estime Irvin, etc., Appellee.

An appeal from a nonfinal order from the Circuit Court for Miami-Dade County, Abby Cynamon, Judge.

Michael A. Etienne, in proper person.

Law Offices of Jonathan A. Heller, P.A., and Jonathan A. Heller, for appellee.

Before SCALES, LINDSEY, and MILLER, JJ.

MILLER, J. Appellant, Michael A. Etienne, challenges a nonfinal order granting appellee,

Mary Estime Irvin, relief from a default and resulting default final judgment

pursuant to Florida Rule of Civil Procedure 1.540. We affirm the order under review

and write only to reiterate the well-entrenched adage that a default “is not [a]

procedure intended to furnish an advantage to the plaintiff so that a defense may be

defeated or a judgment reached without the difficulty that arises from a contest by

the defendant.” Coggin v. Barfield, 8 So. 2d 9, 11 (Fla. 1942).

Here, despite possessing knowledge Irvin was represented by counsel and

intended to defend on the merits, Etienne failed to furnish her with notice of his

application for default. This action was unauthorized under a body of clearly

developed precedent. See Contreras v. Stambul, LLC, 45 Fla. L. Weekly D2032

(Fla. 3d DCA Aug. 26, 2020); U.S. Bank Nat’l Ass’n v. Lloyd, 981 So. 2d 633, 640

(Fla. 2d DCA 2008); Apple Premium Fin. Serv. Co. v. Teachers Ins. & Annuity

Ass’n of Am., 727 So. 2d 1089, 1090 (Fla. 3d DCA 1999). Further compounding

the procedural error, a timely-served motion to dismiss remained pending at the time

Etienne sought and obtained the default final judgment. See Fla. R. Civ. P. 1.500(c)

(“A party may plead or otherwise defend at any time before default is entered.”);

Sansbury v. Wells Fargo Bank, N.A., 204 So. 3d 985, 986-87 (Fla. 5th DCA 2016).

2 Accordingly, the ruling below was eminently correct, and we affirm in all

respects. See DND Mail Corp. v. Andgen Props., LLC, 28 So. 3d 111, 113 (Fla. 4th

DCA 2010).

Affirmed.