Onyx Financial Group, Inc. v. International Waste Systems, Inc.

619 So. 2d 1036, 1993 Fla. App. LEXIS 6150, 1993 WL 191952

Opinion

PER CURIAM.

This is an appeal by the defendants Onyx Financial Group, Inc., et ah, from a non-final order granting the plaintiff International Waste System’s motion for a default in an action sounding in fraud. The motion for default was granted because the defendants failed to comply with a prior court order which directed that the corporate defendant obtain new counsel within twenty days of the entry of order and that the individual defendants either obtain new counsel or announce they were proceeding pro se within the same twenty-day time period; the court, at the same time, granted a motion to withdraw as counsel filed by defendants’ prior attorney. Because (1) the defendants did, in fact, obtain counsel in the cause prior to the entry of the order granting a default, although not within the prescribed twenty-day time period [counsel filed a notice of appearance forty days from the date of the subject court order], and (2) no finding was made by the court that the defendants intentionally disobeyed the court’s order, we hold, in accord with settled law, that the subject order was erroneously entered. See, e.g., Carillon Corp. v. Devick, 554 So.2d 630, 632 (Fla. 4th DCA 1989) and cases collected; Fla. R.Civ.P. 1.420, 1.500(c). Accordingly, the order under review is reversed and the cause is remanded to the trial court with directions to deny the plaintiff’s motion for default.

Reversed and remanded.