Summary
recognizing that entry of a default as. a sanction must be accompanied by express finding that failure to comply with the court's order was willful
Summary of this case from Rice v. RaymondOpinion
No. 95-3024.
September 18, 1996.
Appeal from Circuit Court for the Seventeenth Judicial Circuit, Broward County, Patricia W. Cocalis, J.
Bradford J. Beilly of Beilly Pozzuoli, Fort Lauderdale, for appellant.
John H. Pelzer of Ruden, McClosky, Smith, Schuster Russell, P.A., Fort Lauderdale, and Larry L. Adair, Miami Lakes, for Appellees — Renda Realty, Inc. and WWA Investments, Inc.
BLL Properties, Inc. appeals a summary final judgment of foreclosure in favor of WWA Investments, Inc.
The default contained in the April 13, 1995 "Order on Plaintiff's Motion for Sanctions" was improperly entered. There was no express written finding of BLL's willful or deliberate refusal to obey a court order. Commonwealth Federal Savings Loan Assoc. v. Tubero, 569 So.2d 1271 (Fla. 1990); Wright v. Allen, 611 So.2d 23 (Fla. 1st DCA 1992). Since an attorney had properly filed all of BLL's pleadings, a default was not required within the time frames present in this case. See Richter v. Higdon Homes, Inc., 544 So.2d 300 (Fla. 1st DCA 1989); Carillon Corp. v. Devick, 554 So.2d 630 (Fla. 4th DCA 1989); Szteinbaum v. Kaes Inversiones y Valores, 476 So.2d 247 (Fla. 3d DCA 1985). BLL was entitled to notice of the motion striking its pleadings and the motion for summary judgment.
We reverse the final judgment of foreclosure, the order striking BLL's pleadings, and the order entering a default against BLL.
REVERSED AND REMANDED.
FARMER, KLEIN and GROSS, JJ., concur.