To default a party in a Florida probate or trust litigation can be more complicated than defaulting parties in a general civil litigation case. In a simple car accident lawsuit, the one plaintiff sues the one defendant for damages incurred in the accident. The lawsuit begins by the filing of a complaint by the plaintiff. The defendant then files what is known as the answer. If the defendant does not file the answer, the plaintiff may ask the Court to default the defendant.
There are two types of default in Florida probate and civil cases – a clerk’s default, and a judicial default.
A clerk’s default is set forth at Florida Rule of Civil Procedure 1.500(a), as follows:
(a) By the Clerk. When a party against whom affirmative relief is sought has failed to file or serve any document in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such document.
A Judicial or Court default is set forth at 1.500(b):
(b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any document in the action, that party must be served with notice of the application for default.
After the first step of the default process is complete, the plaintiff can then seek a final judgment of default, at 1.500(e), as follows:
(e) Final Judgment. Final judgments after default may be entered by the court at any time, but no judgment may be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other representative who has appeared in it or unless the court has made an order under rule 1.210(b) providing that no representative is necessary for the infant or incompetent. If it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter to enable the court to enter judgment or to effectuate it, the court may receive affidavits, make references, or conduct hearings as it deems necessary and must accord a right of trial by jury to the parties when required by the Constitution or any statute.
Most Florida probate and trust litigation matters involve more than just one plaintiff and one defendant. In a will contest, for example, one person attempts to set aside a will and would have to name all the people who would be affected. In a trust construction case, for example, everyone affected by the outcome would need to be named as a party. But what happens when some defendants answer and some do not? Can a default judgment be entered against those people in a Florida probate and trust dispute who do not answer?
Can The Court Default A Defendant When Other Defendants Cannot Be Defaulted?
The United States Supreme Court, in Frow v. De La Vega, 82 U.S. 552 (1872), held as follows:
The true mode of proceeding where a bill makes a joint charge against several defendants, and one of them makes default, is simply to enter a default and a formal decree proconfesso against him, and proceed with the cause upon the answers of the other defendants. . . . If the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike — the defaulter as well as the others. If it be decided in the complainant’s favor, he will then be entitled to a final decree against all.
The Third Circuit has interpreted Frow as follows:
[I]f at trial facts are proved that exonerate certain defendants and that as a matter of logic preclude the liability of another defendant, the plaintiff should be collaterally estopped from obtaining a judgment against the latter defendant, even though it failed to participate in the proceeding in which the exculpatory facts were proved.
Farzetta v. Turner Newall, Ltd., 797 F.2d 151, 154 (3d Cir. 1986).
The Frow case has not been strictly applied in Florida. In Behar v. Jefferson National Bank, 519 So.2d 641 (3rd DCA 1987), the Court approved of defaulting the defendants who had not answered the complaint, even though there were non defaulted parties:
Behar suffered judgment because he failed to answer the complaint; in so doing, he surrendered his opportunity to litigate the merits of his defense. The fact that other defendants may prevail on the merits does not render the default against Behar unjust.
The Court, however, essentially created an “out” for the defaulted party in Behar. In a one paragraph opinion issued on rehearing, the Court explained as follows:
Our opinion should not be read to preclude Behar from proceeding under Florida Rule of Civil Procedure 1.540(b)(5) in the event that other defendants prevail on the merits; see Alls v. 7-Eleven Food Stores, Inc., 366 So.2d 484 (Fla.3d DCA 1979), if, however, plaintiffs do not pursue their claims against the other defendants, or defendants do not prevail on the merits, Behar will not be entitled to relief from his default.
Florida Rule of Civil Procedure 1.540(b)(5) provides as follows:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons:
* * *
(5) that the judgment, decree, or order has been satisfied, released, or discharged, or a prior judgment, decree, or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment, decree, or order should have prospective application.
In other words, a party who does not answer can be defaulted, but if the non defaulted parties prevail, the defaulted party can seek relief from the default.
The Fourth DCA, in Days Inn Acquisition v. Hutchinson, 707 So.2d 747 (4th DCA 1997) outlined a new rule – essentially a combination of the holdings in Frow and Behar, as follows:
We reject a broad application of Frow that would require a trial court to defer entry of a default judgment in all cases where there are non-defaulting co-defendants. We likewise reject a per se rule that a plaintiff is always entitled to a default judgment against a defaulting defendant prior to the adjudication of the merits against non-defaulting co-defendants.
In exercising its discretion, the trial court should evaluate whether the entry of the default judgment could lead to an absurd, unjust, or logically inconsistent result. Where, as here, relief against one defendant is completely dependent upon the liability of a co-defendant, it would be improper to allow the final judgment to be entered until the liability of the co-defendant has been decided.
Should You Try To Default a Party in Florida Probate and Trust Litigation?
Yes, you should try to default a party in Florida probate and trust litigation. The inquiry seems to be be based on whether, in the trial court’s discretion, defaulting the party who has not answered would lead to an absurd, unjust, or logically inconsistent result. In many trust and estate litigations, however, an absurd outcome would result if a party is defaulted where there are other parties who are similarly aligned. If there are two defendants in a will contest, both of whom benefitted from the new will in question, the form of relief requested will be declaratory in nature – the plaintiff is asking the court to declare the last will invalid. Seems doubtful that the court could declare the new will invalid for the defaulted party, but then hold the will valid after a trial, for the party who was not defaulted.
Nevertheless, it still may make sense to attempt to default a party that has not answered, for no other reason than to simplify and streamline proceedings. A clerk’s default will be entered without a hearing or any analysis other than whether the defendant in question has answered the complaint. So the rule set forth in Days Inn will not be applicable at the clerk’s default stage. Only later, when the judicial default or a final judgment of default is sought, will the principles set forth in Days Inn and Behar be applicable.
The benefit of a clerk’s default in a case with multiple defendants is nonetheless clear – the plaintiff will not have to schedule or coordinate anything with the defaulted party. In a case with multiple defendants – especially one with parties not represented by counsel – the benefit of ignoring a defaulted party will normally be significant. In the real world, attempting to coordinate a mediation in a case with 10 parties, for example, is challenging. Being able to ignore a few defendants without lawyers will always be beneficial.
In a probate or trust case with multiple defendants, especially where the relief sought is declaratory in nature, the best practice in handling defendants who have not filed any responsive document to the complaint or the petition would seem to get a clerk’s default, and then wait to see what happens with respect to the merits of the case. If the plaintiff prevails, the plaintiff should then seek a final judgment of default pursuant to Florida Rule of Civil Procedure 1.500(e). If the plaintiff loses, there will likely be no need to seek the final judgment of default, because Days Inn would suggest that such final judgment of default cannot be entered.