final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Monica
Gordo, Judge. Lower Tribunal No. 13-36703
Serota Helfman Cole & Bierman, P.L., and Roger S. Kobert,
M. Joseph, P.A., and Gerson M. Joseph (Weston), for appellee.
ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
defendant below, Iman Emami appeals a final default judgment
entered in favor of appellee, plaintiff below, Progressive
Brands, Inc. ("Progressive"). Because the trial
court failed to give Emami an opportunity to contest damages
before entering the final default judgment, we hold that the
judgment is void and reverse.
Facts and Procedural Background
November 2013, Progressive filed the instant action against
several defendants in the Miami-Dade Circuit Court, including
Emami. As the case progressed, Progressive dismissed one
defendant; another corporate defendant, Eastgate Tobacco
Company, LLC, stipulated to entry of a $247, 620.88 judgment
against it. The only claims then remaining were
Progressive's claims against Emami for fraud (count II)
and to impose individual liability on Emami by piercing the
corporate veil of Eastgate (count IV). Emami's
initial lawyer withdrew from the case in August 2014, and in
November 2014, Emami's new lawyer, Kramer Huy, P.A.
("Kramer") filed an Answer and Affirmative Defenses
to Progressive's Amended Complaint.
2015, Progressive served Emami with interrogatories, requests
for admissions and requests for production. Pursuant
to Florida Rule of Civil Procedure 1.080(a) and Florida Rule
of Judicial Administration 2.516(b), Progressive served Emami with
this discovery by serving Kramer. The record reflects that
Kramer forwarded the discovery to Emami via
e-mail. The record also reflects that
Progressive's counsel requested Kramer to provide dates
for Emami's deposition. No discovery responses were ever
provided to Progressive, and Kramer never provided deposition
dates to Progressive's counsel.
September 2, 2015, Kramer informed Progressive's counsel
of Kramer's intent to withdraw from representation of
Emami. That same day, Progressive filed a motion to compel
discovery and for sanctions, noting therein that Kramer
intended to withdraw as Emami's counsel, and that
Progressive would not set the September 2 motion for hearing
until after Kramer had a reasonable time both to inform Emami
of Progressive's September 2 motion, and to file his
motion to withdraw. On September 21, 2015, Progressive served
Kramer with a notice setting an October 5, 2015 hearing date
on its September 2 motion. Also on September 21, Kramer filed
his motion to withdraw as Emami's counsel, but did not
set that motion for hearing.
October 2, 2015, Progressive's counsel purportedly sent
Kramer an email asking if Emami would be opposing
Progressive's September 2 motion, and Kramer purportedly
responded to this e-mail notifying Progressive that Emami
would not be opposing Progressive's September 2
motion. Based on Kramer's representation,
Progressive's counsel dispensed with the October 5, 2015
hearing, and, instead submitted to the trial court an Agreed
Order Granting Plaintiff's Motion to Compel. This order,
signed by the trial court on October 5, required Emami to
provide the discovery responses and deposition dates to
Progressive's counsel within ten days. No sanctions were
imposed in this October 5 Agreed Order.
received neither the discovery responses nor deposition dates
from Emami (or Kramer), on October 21, 2015, Progressive
moved for a default against Emami as a sanction for failing
to comply with the trial court's October 5 Agreed Order.
That same day, Progressive noticed its October 21 motion for
default for a November 2, 2015 hearing.
to the November 2 hearing, on October 29, 2015,
Progressive's counsel sent Kramer an e-mail asking
whether Kramer will be setting his motion to withdraw for
hearing, and whether Kramer will be attending the November 2,
2015 hearing to oppose Progressive's motion.
Later on October 29, Kramer's office responded to the
e-mail by stating: "Mr. Kramer ...