Michael Prada v. Gustavo Pol Ramirez

• Court: District Court of Appeal of Florida
• Decided: October 23, 2024
• Docket: 3D2023-2274
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 23, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-2274 Lower Tribunal No. 23-21516 ________________

Michael Prada, Appellant,

vs.

Gustavo Pol Ramirez, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge.

Reizenstein & Sola, PLLC, Bhakti Kadiwar, and Philip L. Reizenstein, for appellant.

The Bravo Law Firm, PLLC, and Jason Bravo, for appellee.

Before SCALES, MILLER, and LOBREE, JJ.

MILLER, J.

1 Appellant, Michael Prada, seeks relief from a default final judgment

granting specific performance in favor of appellee, Gustavo Pol Ramirez.1

“[E]ntry of a clerk’s ‘default [as authorized under Florida Rule of Civil

Procedure 1.500(a)] is not appropriate in cases where the plaintiff knows that

a defendant is represented by counsel who intends to assert matters in

defense of the cause of action,’” Contreras v. Stambul, 306 So. 3d 1143,

1144 (Fla. 3d DCA 2020) (quoting Gulf Maint. & Supply, Inc. v. Barnett Bank

of Tallahassee, 543 So. 2d 813, 816 (Fla. 1st DCA 1989)) (alteration in

original), and here, the record unequivocally demonstrates that Ramirez was

aware Prada was represented and seeking to engage in settlement

negotiations when the clerical default was entered. Accordingly, we reverse

and remand for further proceedings. See M.W. v. SPCP Grp. V, LLC, 163

So. 3d 518, 519 (Fla. 3d DCA 2015) (finding presuit contacts between

counsel, including a letter and phone conversation, constituted notice that

“defendant was represented by counsel and intended to defend” the suit on

the merits); Apple Premium Fin. Serv. Co. v. Tchrs. Ins. & Annuity Ass’n of

Am., 727 So. 2d 1089, 1090 (Fla. 3d DCA 1999) (“[C]orrespondence

between counsel and a presuit settlement conference between counsel and

1 Although entitled a motion for default judgment, the underlying motion substantively sought entry of summary judgment pursuant to Florida Rule of Civil Procedure 1.510. 2 representatives of the respective clients” constituted an indication that

“defendant is being represented by counsel who has expressed an intention

to defend on the merits”) (quoting Ole, Inc. v. Yariv ex rel. Yariv, 566 So. 2d

812, 815 (Fla. 3d DCA 1990)); Becker v. Re/Max Horizons Realty, Inc., 819

So. 2d 887, 890 (Fla. 1st DCA 2002) (“For purposes of construing the right

to enter a default under rule 1.500(a), the term ‘paper’ is construed liberally

and includes any written communication that informs the plaintiff of the

defendant’s intent to contest the claim.”); EGF Tampa Assocs. v. Edgar V.

Bohlen, G.F.G.M. A.G., 532 So. 2d 1318, 1320–21 (Fla. 2d DCA 1988)

(finding letter requesting information about the lawsuit constituted paper);

NCR Corp. v. Cannon & Wolfe Lumber Co., 501 So. 2d 157, 158 n.1 (Fla.

1st DCA 1987) (noting a paralegal’s letter “acknowledg[ing] a telephone

conversation with appellee’s counsel” deemed paper under rule 1.500);

Reicheinbach v. Se. Bank, N.A., 462 So. 2d 611, 612 (Fla. 3d DCA 1985)

(“We reject appellee’s assertion that the letter was insufficient to require

notice because it was not a responsive pleading. The rule does not limit the

type of paper to be served. . . . Our holding accords with the liberal policy of

Florida courts to grant motions to set aside defaults.”); Ace Funding Source,

LLC v. A1 Transp. Network, Inc., 314 So. 3d 726, 728 (Fla. 3d DCA 2021)

3 (holding clerk’s default was improperly entered due to correspondence

between parties’ attorneys).

Reversed and remanded.