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A Typical Column for Ask Doctor Law – 2/2/09

DEFENDANT SEEKS RELIEF FROM DEFAULT JUDGMENT

Q: I signed an office lease for my new import-export business. According to my interpretation, it allowed year end termination if my annual sales didn’t reach a certain level. When I cancelled and moved out the landlord disagreed and sued me for breach of contract. The legal papers were served on my wife, not me, so I ignored them. Now I’ve received a default judgment against me for the amount I supposedly owe the landlord. I spoke to my wife’s lawyer brother who says that I have to pay. What’s your opinion?

- - “Messed Up in Miami.”

A: We agree you have a legal mess on your hands. With all due respect, most of it was self-created. But there still may be a way for you to have your day in court in your landlord-tenant contract dispute. The two main legal issues to discuss are service of process and default judgment.

Assuming you leased as an individual tenant and signed that same way, you personally are the proper lawsuit defendant. In order for the court to have personal jurisdiction over you, the legal complaint had to be properly served. You incorrectly assumed that the papers had to be delivered to you personally. Florida Statute 48.031 requires service of process on the named individual defendant or “any person who is 15 years of age or older” residing at the defendant’s home. Service on your wife was proper. Other states have similar laws. Their purpose is to prevent defendants from delaying pending lawsuits by trying to evade service of process.

The standard wording on the summons and legal complaint served on your wife warned that a failure to respond within 20 calendar days would result in entry of a default against you. It also stated that if you didn’t respond on time, “you may lose the case … without further warning from the court.” You should have taken it seriously.

When the landlord’s attorney didn’t hear from you in the required time, he got a default, filed his proofs of claim, and was awarded the default judgment. An outstanding money judgment is dangerous. Aside from affecting your credit, it’s a lien against your personal assets. They could be seized by the plaintiff in a legal procedure called levy of execution.

But all is not lost. There’s a way for you to set aside the default judgment, so you can present your side of the dispute. Florida Civil Procedure Rule 1.540(b) allows such relief for one year after entry of the final judgment in cases of “mistake, inadvertence, surprise, or excusable neglect.” You should immediately consult a qualified litigation attorney and file the necessary pleadings showing you have a good defense to the complaint. Judges are usually lenient in allowing defaulted defendants to have their day in court. Good luck.