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Emami v. Progressive Brands, Inc.

Florida Court of Appeals, Third District

September 6, 2017

Iman Emami, Appellant,
Progressive Brands, Inc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Monica Gordo, Judge. Lower Tribunal No. 13-36703

          Weiss Serota Helfman Cole & Bierman, P.L., and Roger S. Kobert, for appellant.

          Gerson M. Joseph, P.A., and Gerson M. Joseph (Weston), for appellee.

          Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.

          SCALES, J.

         Appellant, 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.

         Relevant Facts and Procedural Background

         In 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).[1] 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.

         In July 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), [2]Progressive served Emami with this discovery by serving Kramer. The record reflects that Kramer forwarded the discovery to Emami via e-mail.[3] 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.

         On 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.

         On 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.[4] 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.

         Having 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.

         Prior 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 ...

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