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Lisca v. Florida Atlantic Construction, Inc.

Florida Court of Appeals, Fourth District

May 31, 2017

EULOGIO LISCA, Appellant,
v.
FLORIDA ATLANTIC CONSTRUCTION, INC., and SYMMETRICAL STAIRS, INC., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Consolidated appeals from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cheryl Caracuzzo and Edward Garrison, Judges; L.T. Case No. 2009CA001790XXXXMB.

          Douglas F. Eaton of Eaton & Wolk, PL, Miami, for appellant.

          Michael R. D'Lugo of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Orlando, for appellee Florida Atlantic Construction, Inc.

          Klingensmith, J.

         Appellant Eulogio Lisca sued appellee Florida Atlantic Construction, Inc. ("FAC") after he fell down an elevator shaft and was injured. During the litigation, FAC filed a motion to add a counterclaim against appellant for declaratory relief. When appellant failed to file a responsive pleading to that counterclaim, the court entered a default against him. For the reasons set forth below, we affirm the court's entry of default.

         Appellant was an employee for a subcontractor on a construction project for which FAC was the general contractor. Appellant received workers' compensation benefits from his employer, and later filed a personal injury complaint against FAC.

         FAC filed its first motion for final summary judgment on October 29, 2010, arguing that it was entitled to workers' compensation immunity because appellant was not merely a "materialman." After that motion was denied, FAC filed another motion for summary judgment on June 13, 2013, this time arguing that FAC was entitled to summary judgment because when appellant signed a workers' compensation settlement agreement with his employer, he agreed to release FAC from any liability as well. Two weeks later, FAC filed a motion to add a counterclaim against appellant for declaratory relief, arguing the same point it raised in its first motion for summary judgment that was denied. The court granted FAC's motion to amend on September 11, 2013, and provided appellant twenty days to respond to FAC's counterclaim.

         Twenty days later, appellant filed a motion for extension of time to respond to FAC's counterclaim. Based on an agreement between the parties, the court granted appellant's motion for extension of time. However, instead of filing a responsive pleading, appellant then filed a motion to dismiss FAC's counterclaim. In the motion, he argued that the counterclaim was untimely because it was compulsory, and improper because the court already ruled on the issue of whether FAC was entitled to workers' compensation immunity when it denied FAC's first motion for summary judgment. A hearing on the motion to dismiss was scheduled for December 9, 2013, and when appellant's trial counsel failed to appear, the court decided it could render its decision based on the motions filed by the parties, and denied appellant's motion to dismiss. The court ordered appellant to respond to FAC's counterclaim for declaratory relief within ten days.

         On December 19, 2013, appellant then filed another motion for an extension of time. Appellant's counsel stated that she could not attend the prior hearing because she had a conflict with another case and unsuccessfully tried to inform the court. Counsel argued that her client would be denied due process if he was not able to challenge the order denying appellant's motion to dismiss.

         The hearing on this request for an extension of time was scheduled for March 27, 2014. However, on that date appellant's trial counsel filed a last-minute emergency motion for continuance, stating that she could not attend the hearing due to "medical reasons." Despite counsel's absence, the trial court issued an order giving appellant another twenty days to file an answer to FAC's counterclaim.

         Instead of responding to the counterclaim as ordered, appellant's counsel filed another motion on April 17, 2014. This time, counsel requested yet another enlargement of time to respond to FAC's counterclaim and for reconsideration. In addition to requesting that the court reconsider its order denying the motion to dismiss FAC's counterclaim, counsel also argued that she should be given more time to respond because of medical reasons.

         On April 29, 2014, FAC filed its motion for default, arguing that, pursuant to Florida Rule of Civil Procedure 1.500(b), appellant failed to properly defend against FAC's counterclaim by not filing an answer almost eight months after being ordered to do so. The next day, appellant's counsel responded by filing a "motion to strike and for sanctions and for a continuance."

         On August 12, 2014, the court conducted a hearing on FAC's second motion for summary judgment. Although the court did not rule on the summary judgment during this proceeding, at the end of the hearing FAC asked the court about its motion for default based on appellant's failure to answer the counterclaim. The following exchange then took place:

[FAC'S COUNSEL]: Your Honor, we have a - we've got a motion for default. We have a counterclaim based on the immunity issue, and ...

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