Request to File Reply Brief – Third District Court of Appeal

IN THE DISTRICT COURT OF APPEAL OF FLORIDA
THIRD DISTRICT

ARENA ADVERTISING &
PUBLISHING, LLC,
CASE NO.: 3D10-976
Appellant,

v.

ALVIN AILEY DANCE
FOUNDATION, INC.

Appellee.
_______________________________________/

APPELLANT’S MOTION FOR LEAVE TO FILE A REPLY BRIEF

COMES NOW Appellant, Arena Advertising & Publishing, LLC (“Arena”), by and through its undersigned counsel and submits this, its Motion to File a Reply Brief and states:
1. Arena filed its Initial Brief June 14, 2010.
2. Appellee filed its Answer Brief on July 12, 2010.
3. Should Arena’s Motion to Strike Appellee’s Answer Brief be denied, Arena respectfully requests leave to file a Reply Brief to address various points of error in the Answer Brief pursuant to Fla. R. App. P. Rule 9.210.
WHEREFORE, Arena respectfully requests that this Court grant it leave to file a Reply Brief .

Respectfully submitted this _____ day of July, 2010.

___________________
Michael D. Stewart, Esq.
FL Bar No.: 12457
Attorney for Appellant/Defendant
One Biscayne Tower, Suite 1650
2 South Biscayne Boulevard
Miami, FL 33131
Telephone: (305) 394-8546
Fax: (866) 380-8986

PROOF OF SERVICE
I HEREBY certify that the APPELLANT’S MOTION FOR LEAVE TO FILE A REPLY BRIEF, was served by REGULAR MAIL on the attorneys for Appellee/Plaintiff of record/interested parties in this action: Proskauer Rose, LLP, One Boca Place, Suite 340 West, 2255 Glades Road, Boca Raton, Florida 33431 (561) 241-7400 and (561) 241-7145 (fax) on this __________ day of July, 2010.
___________________
Michael D. Stewart, Esq.
FL Bar No.: 12457
Attorney for Appellant/Defendant

CERTIFICATE OF COMPLIANCE

I HEREBY certify that this brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2), and certifies that the foregoing is typed in fourteen (14) point Times New Roman font.

___________________
Michael D. Stewart, Esq.
FL Bar No.: 12457
Attorney for Appellant/Defendant

Motion to Strike Appellate Brief – Third District Court of Appeal Florida

IN THE DISTRICT COURT OF APPEAL OF FLORIDA
THIRD DISTRICT

ARENA ADVERTISING &
PUBLISHING, LLC,
CASE NO.: 3D10-976
Appellant,

v.

ALVIN AILEY DANCE
FOUNDATION, INC.

Appellee.
_______________________________________/

APPELLANT’S MOTION TO STRIKE APPELLEE’S ANSWER BRIEF AS UNTIMELY, FRIVOLOUS, AND REQUEST FOR SANCTIONS

COMES NOW Appellant, Arena Advertising & Publishing, LLC (“Arena”), by and through its undersigned counsel and submits this, its Motion to Strike Appellee’s Answer Brief and states:
1. Arena filed its Initial Brief June 14, 2010.
2. Appellee filed its Answer Brief on July 12, 2010.
3. Appellee has not abided by the time limits set forth in Fla. R. App. P. Rule 9.210 (f) which states that “. . . Unless otherwise required, the answer brief shall be served within 20 days after service of the initial brief . . . .” (emphasis added). Appellee’s Answer Brief was filed 28 days after Appellant’s Initial Brief with this Court.
4. Furthermore, Appellee has asserted frivolous accusations within its Answer Brief of misconduct between the undersigned and the Honorable Jennifer D. Bailey, Administrative Judge of the 11th Judicial Circuit, Civil Division.
5. Appellee baselessly asserts that there were ex parte communications between the undersigned and Judge Bailey regarding Arena’s Motion to Set Aside the Default Judgment in a “telephonic hearing.” Said accusations may be found on pages 2 and 8-9 of Appellee’s Answer Brief, which taint both the undersigned’s and Judge Bailey’s reputation in the public record.
6. No such ex parte telephonic hearing occurred. Arena’s Motion to Set Aside the Default Judgment was submitted to the lower court and copies furnished by U.S. Mail to the Appellee. This motion was never set for hearing by either party and Judge Bailey, on her own volition, made a ruling without a hearing with copies delivered to both parties. No such ex parte communication or telephonic hearing occurred.
7. As such, these accusations are frivolous and done in a bad faith attempt to influence this Court as to the reputation of the undersigned in the public record.
8. Fla. R. App. P. Rule 9.410 states: “After 10 days’ notice, on its own motion, the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other paper that is frivolous or in bad faith. Such sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other sanctions.”
9. Arena believes that sanctions should be invoked as these claims are clearly frivolous in nature, and done so in bad faith. Arena further believes that the correct sanction in this case is the striking of Appellant’s Answer Brief from the public record, reprimand or contempt issued upon counsel for the Appellant, and attorney’s fees be issued for time spent defending these frivolous accusations.
10. The general policy behind awarding attorney’s fees for bringing a frivolous action is to discourage baseless claims, stonewall defenses, and sham appeals by sanctioning those responsible for unnecessary litigation costs. See Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla. 1990); Wood v. Price, 546 So.2d 88 (Fla. 2d DCA 1989).
11. Guidelines have been set forth as to when claims are frivolous. These include where a case is found: “(a) to be completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (b) to be contradicted by overwhelming evidence; (c) as having been undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (c) as asserting material factual statements that are false.” Visoly v. Security Pacific Credit Corp., 768 So. 2d 482 (Fla. 3d DCA 2000).
12. Here, it is unmistakable that such statements of ex parte communications are asserted as material facts, but nevertheless clearly false in nature. Furthermore, these are attempts to harass and maliciously injure the reputation of the undersigned in the public record.
WHEREFORE, Arena respectfully request that this Court strike Appellee’s Answer Brief as untimely and pursuant to Fla. R. App. P. Rule 9.410 as a remedy to a brief that is littered with frivolous accusations and done so in bad faith. Arena further respectfully requests that this Court issue any sanctions that it sees fit upon the Appellee pursuant to Fla. R. App. P. Rule 9.410.

Respectfully submitted this _____ day of July, 2010.

___________________
Michael D. Stewart, Esq.
FL Bar No.: 12457
Attorney for Appellant/Defendant
One Biscayne Tower, Suite 1650
2 South Biscayne Boulevard
Miami, FL 33131
Telephone: (305) 394-8546
Fax: (866) 380-8986

PROOF OF SERVICE
I HEREBY certify that the APPELLANT’S MOTION TO STRIKE APPELLEE’S ANSWER BRIEF AS UNTIMELY, FRIVOLOUS, AND REQUEST FOR SANCTIONS, was served by REGULAR MAIL on the attorneys for Appellee/Plaintiff of record/interested parties in this action: Proskauer Rose, LLP, One Boca Place, Suite 340 West, 2255 Glades Road, Boca Raton, Florida 33431 (561) 241-7400 and (561) 241-7145 (fax) on this __________ day of July, 2010.
___________________
Michael D. Stewart, Esq.
FL Bar No.: 12457
Attorney for Appellant/Defendant

CERTIFICATE OF COMPLIANCE

I HEREBY certify that this brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2), and certifies that the foregoing is typed in fourteen (14) point Times New Roman font.

___________________
Michael D. Stewart, Esq.
FL Bar No.: 12457
Attorney for Appellan

Third District Court of Appeal Brief

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

Case No.: 3D10-976

ARENA ADVERTISING & PUBLISHING, LLC,
Appellant,

v.

ALVIN Ailey DANCE FOUNDATION,
Appellee.

ON APPEAL FROM THE CIRCUIT COURT FOR THE
ELEVENTH JUDICIAL CIRCUIT OF FLORIDA

INITIAL BRIEF

Michael D. Stewart, Esq.
Attorney for Appellant/Defendant
One Biscayne Tower, Suite 1650
2 South Biscayne Boulevard
Miami, FL 33131
Telephone: (305) 394-8546
Fax: (866) 380-8986
Proskauer Rose, LLP
Attorney for Appellee/Plaintiff
One Boca Place, Suite 340 West
2255 Glades Road
Boca Raton, Florida 33431
Telephone: (561) 241-7400
Fax: (561) 241-7145

QUESTIONS PRESENTED FOR REVIEW

1. Whether the lower Court abused its discretion in denying the Appellant’s Emergency Motion to Set Aside Default Judgment where an indispensible party was not joined and relief was granted against an incorrect party.
2. Whether the lower Court abused its discretion in denying an evidentiary hearing prior to entering a final default judgment.
3. Whether the lower Court abused its discretion in denying the Appellant’s Emergency Motion to Set Aside Default Judgment when there were issues regarding excusable neglect.
4. Whether the lower Court abused its discretion in stating that the Appellant had waived its right to arbitrate pursuant to the Agreement between the parties.

TABLE OF CONTENTS
Page
Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . i
Statement of the Case and of the Facts . . . . . . . . . . . . . . . . 1
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . 3
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . 5
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I. The lower Court abused its discretion in denying the Appellant’s Emergency Motion to Set Aside Default Judgment where an indispensible party was not joined and relief was granted against an incorrect party . . . . . 8

II. The lower Court abused its discretion in denying an evidentiary hearing prior to entering a final default judgment . . . . . . . . . . . 10

III. The lower Court abused its discretion denying the Appellant’s Emergency Motion to Set Aside Default Judgment where there were issues regarding excusable neglect . . . . . . . . . . . . . . . 11

IV. The lower Court abused its discretion in stating that the Appellant had waived its right to arbitrate pursuant to the Agreement between the parties . 13

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . 18
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . 19

TABLE OF CITATIONS

Cases: Pages
Alario v. Miller
354 So. 2d 925 (Fla. 2d DCA 1978) . . . . . . . . . . . . 9

Anderson v. State
627 So.2d 117 (Fla.1993) . . . . . . . . . . . . . . . . . . . 10

Bojadzijev v. Roanoke Technology Corp.
997 So. 2d 1251 (5th DCA 2009) . . . . . . . . . . . 3, 6, 15

Brandt v. Dolman
421 So.2d 689 (Fla. 4th DCA 1982) . . . . . . . . . . . . 11

Foster v. State
810 So.2d 910 (Fla. 2002) . . . . . . . . . . . . . . . . 10

Garcia Ins. Agency, Inc. v. Diaz
351 So.2d 1137 (Fla. 2d DCA 1977) . . . . . . . . . . . . . . 3

Kephart v. Pickens
271 So. 2d 163 (Fla. 4th DCA 1972) . . . . . . . . . . . 5, 9

Miller & Solomon General Contractors Inc. v. Brennan’s Glass Inc.
824 So.2d 288 (Fla. 4th DCA 2002) . . . . . . . . . . . . 15

North Shore Hospital, Inc. v. Barber
143 So.2d 849 (Fla. 1962) . . . . . . . . . . . . . . . 11

Opti Inc. v. Sales Engineering Concepts Inc.
701 So.2d 1234 (Fla. 4th DCA 1997) . . . . . . . . . . 13, 14

Raymond James Financial Services Inc. v. Saldukas
896 So.2d 707, 711 (Fla.2005) . . . . . . . . . . . . . . 14

Somero v. Hendry General Hosp.
467 So. 2d 1103 (Fla. 4th DCA 1982) . . . . . . . . . . . 11

Wentnick v. European Bank & Trust Co.
487 So. 2d 38 (4th DCA 1986) . . . . . . . . . . . . . . . 11

Statutes:
Fla. R. App. P. 9.030(b)(1)(A) . . . . . . . . . . . . . . . . 2

Fla. R. App. P. 9.141(b)(2)(D) . . . . . . . . . . . . . . . . 10

STATEMENT OF THE CASE AND OF THE FACTS
Alvin Ailey Dance Foundation, Inc. is the umbrella organization for the Alvin Ailey American Dance Theater, one of the best-known modern dance companies in the United States. Arena Advertising & Publishing, LLC is an entity which promotes major theatrical, sporting, and other types of event. Arena Advertising, Inc., who was not joined in this matter, is another company which did advertising and promoting.
This is an appeal from a default final judgment granted to the Alvin Ailey Dance Foundation, Inc., (“Ailey”) by the Eleventh Judicial Circuit, County of Miami-Dade, State of Florida. In 2008, Ailey and Arena Advertising & Publishing, LLC (“Arena”) entered into a publishing agreement (the “Agreement”). Arena and Ailey were in negotiations to settle a dispute that arose between the parties. During these negotiations, Ailey obtained a final default judgment against Arena. Before the hearing for final default judgment, Arena Advertising & Publishing, LLC moved to set aside the default judgment and the lower court denied its motion. Arena retained undersigned counsel who filed an Emergency Motion to Set Aside Default Judgment. Due to excusable neglect in failing to obtain counsel earlier due to ongoing negotiations, the lower court entered a default final judgment against Arena.
Ailey sought money damages against Arena Advertising & Publishing, LLC for the years of 2008-2009. However, since Arena Advertising & Publishing, Inc. was not created until March 24, 2008, the proper party for 2007-2008 should be Arena Advertising, Inc. who was not joined as an indispensible party to the suit.
Arena now submits this appeal pursuant to Fla. R. App. P. 9.030(b)(1)(A) for review of the lower court’s final denial of it Emergency Motion to Set Aside Default Judgment.

STANDARD OF REVIEW
The standard of review is abuse of discretion. “Although a party must establish a gross abuse of the trial court’s discretion to justify an appellate court’s reversal of a ruling on a motion to set aside a default, a lesser showing is required to reverse a denial of a motion to set aside a default than to reverse a granting of such motion.” Garcia Ins. Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977). Here, the trial court judge abused her discretion by denying the Appellee’s Emergency Motion to Set Aside Default Judgment. There were readily apparent issues concerning the absence of parties necessary for the cause of action, the lack of an evidentiary hearing, as well as other deficiencies raised in this appeal.
Furthermore, the failure to arbitrate in New york caused an unjust result and was contrary to the Agreement entered into between the parties. The lower court did not determine if there were issues of material fact before the entry of final default judgment since it denied an evidentiary hearing. Here, the appellate court review errors not objected at trial, mainly the denial of an evidentiary hearing, and the fact that the Appellant did not actively participate in litigation, and thus never waived its right to arbitrate in New York. The trial judge’s citation of Bojadzijev v. Roanoke Technology Corp., 997 So. 2d 1251 (5th DCA 2009) was also incorrect as the facts in that case are inherently different than the facts in the immediate case, and thus her citation constitutes an abuse of discretion. In that case, the defaulted party actively participated in litigation. This participation was the key factor in the Court’s decision. In this case, Appellant did not participate in the litigation until one attorney argued against default and then undersigned counsel was retained and filed a Emergency Motion to Set Aside Default Judgment, which was denied.

SUMMARY OF ARGUMENT
Appellant respectfully requests that this Court overturn the trial court for the following reasons:
First, there was a failure to join Arena Advertising, Inc. as an indispensable party to the suit. “An indispensable party is one whose interest in the subject matter of the action is such that if he is not joined, a complete and efficient determination of the equities and rights and liabilities of the other parties is not possible.” Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972). Thus, the Appellee has failed to join an indispensible party in this action, namely Arena Advertising, Inc. Arena Advertising, Inc. was not even in the records of the state of Florida until March 24, 2008 and thus could not be liable for the judgment until after that date. The equities, rights, and liabilities of the missing party cannot be determined when an incorrect judgment was fully rendered against Arena Advertising & Publishing, LLC.
Appellant filed a Emergency Motion to Set Aside Default Judgment prior to final judgment which raised substantial issues now being sought for review in this Appeal. Appellant was neither afforded an evidentiary hearing to present evidence in its favor, nor granted an opportunity to refute evidence presented by the Appellee. Appellant’s counsel was retained after the entry of default had been granted, and no evidentiary hearing was allowed. Because there was no evidentiary hearing at any stage of the case, the lower court abused its discretion in denying Appellant’s Emergency Motion to Set Aside Default Judgment.
The trial court also abused its discretion in denying Appellant’s Emergency Motion to Set Aside Default Judgment when there were significant issues of excusable neglect on behalf of Appellant’s prior counsel. Appellant retained prior counsel days before the entry of final default judgment, and counsel had no opportunity to present evidence on behalf of his client.
Finally, the lower court abused its discretion in stating that the Appellant had waived its right to arbitration, and improperly relied upon Bojadzijev v. Roanoke Technology Corp., 997 So. 2d 1251 (5th DCA 2009) in its rationale. In the Bojadzijez case, the Court found the Appellant had failed to raise excusable neglect, due diligence, or meritorious defenses. The court also properly conducted a hearing to determine if the defendant had any meritorious defenses at the trial court level prior to grating an entry of default. Here, Appellant did not materially participate in the litigation and was not allowed an evidentiary hearing.

ARGUMENT

I. THE LOWER COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT’S EMERGENCY MOTION TO SET ASIDE DEFAULT JUDGMENT AS AN INDISPENSIBLE PARTY WAS NOT JOINED AND RELIEF WAS GRANTED AGAINST AN INCORRECT PARTY.

The lower court abused its discretion in entering a default final judgment against the Appellant due to the fact that an indispensible party was not joined and a default final judgment was rendered against an incorrect party. Ailey claimed, and was awarded, judgment against Arena Advertising & Publishing, LLC for the years of 2007-2009. However, Arena Advertising & Publishing, LLC was not established with the State of Florida until March 24, 2008, making it impossible that it is liable for damages before March 24, 2008. Appellee confused Arena Advertising, Inc. with Arena Advertising & Publishing, LLC and was awarded judgment against an incorrect party.
Appellee made no efforts to identify the other party to this suit, and introduced evidence to the court stating that Arena Advertising & Publishing LLC was liable for the full amount allegedly due.
“An indispensable party is one whose interest in the subject matter of the action is such that if he is not joined, a complete and efficient determination of the equities and rights and liabilities of the other parties is not possible.” Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972). Failure to join an indispensible party has been allowed to be raised for the first time on appeal, and even sua sponte by the Court of Appeal. “With due respect to the trial judge the issue of the lack of an indispensable party was not raised in the trial court. . . Nevertheless, this
Issue may be raised for the first time on appeal, and we do so sua sponte. See Martinez v. Balbin, 76 So.2d 488 (Fla. 1954); McAdoo v. Moses, 101 Fla. 936, 132 So. 638 (1931); Kephart v. Pickens, 271 So.2d 163 (Fla. 4th DCA 1972).” Alario v. Miller, 354 So. 2d 925 (Fla. 2d DCA 1978). Here, Arena Advertising, Inc., was the proper party in the action for one half of the years Ailey claims damages against Arena. It would be inequitable to grant a full remedy against a party who was only potentially liable for less than one half of the value of the judgment rendered by the lower court
Therefore, Appellant requests that the Final Default Judgment be vacated.
II. THE LOWER COURT ABUSED ITS DISCRETION IN DENYING AN EVIDENTIARY HEARING PRIOR TO ENTERING FINAL DEFAULT JUDGMENT.

The lower court abused its discretion in denying Appellant’s Emergency Motion to Set Aside Default Judgment, an evidentiary hearing was not afforded prior to the entering of final default judgment. This Court has explained that “[t]o support summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.” Anderson v. State. 627 So.2d 1170, 1171 (Fla. 1993). Here, the lower court did none of these and incorrectly relied on a case, with facts materially different than this case.
Further, Florida Rule of Appellate Procedure 9.141(b)(2)(D), mandates an evidentiary hearing unless the allegations are conclusively refuted by the record. This basis for summary denial is in conflict with the standard that an evidentiary hearing is required unless the allegations are “conclusively refuted” Foster v. State. 810 So.2d 910, 914 (Fla. 2002).
Appellant filed a motion to vacate the default prior to final judgment which raised substantial issues of material fact. Appellant was neither afforded an evidentiary hearing to present evidence in its favor, nor to refute evidence presented by the Appellee. Because there was no evidentiary hearing, the lower court abused its discretion in denying Appellant’s Emergency Motion to Set Aside Default Judgment when there was not enough evidence on the record to conclusively prove the allegations in Appellee’s motion.
III. THE LOWER COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT’S EMERGENCY MOTION TO SET ASIDE DEFAULT JUDGMENT AS THERE WERE ISSUES REGARDING EXCUSABLE NEGLECT.

The lower court abused its discretion in denying Appellant’s Emergency Motion to Set Aside Default Judgment where there were issues regarding excusable neglect.
[A] default will not be set aside where the defaulted party or his attorney (1) simply forgot or (2) intentionally ignored the necessity to take appropriate action; that is to say, where the conduct could reasonably be characterized as partaking of gross negligence or as constituting a willful and intentional refusal to act. The failure to state any factual grounds upon which the movant relies has also been held to be an insufficient basis for setting aside a default.

Somero v. Hendry General Hosp. 467 So. 2d 1103, 1106 (Fla. 4th DCA 1982).
This is not the case here as Appellant was represented by counsel and did appear at the motion hearing. Furthermore, Appellant’s former counsel did not fail to take appropriate action in this matter and neither simply forgot, nor intentionally ignored the necessity to take action. Additionally, in Somero, the court held that it was “a gross abuse of discretion for the trial court to refuse to set aside a default where there was a reasonable misunderstanding accompanied by a timely application and credible explanation.” Id. In the immediate case, there was no opportunity before the entry of final default judgment for former counsel to provide credible explanations, and nothing to preclude new counsel from claiming the excusable neglect of previous counsel. Here, undersigned counsel of record is submitting this direct appeal as Appellant’s timely and credible explanation for excusable neglect.
In Wentnick v. European Bank & Trust Co., 487 So. 2d 38 (4th DCA 1986), the Court reversed the lower court’s denial of a motion to vacate the default judgment. The appellant retained an attorney soon after default judgment who filed a Emergency Motion to Set Aside Default Judgment and final default judgment. The trial court denied its motion. “Florida courts liberally set aside defaults so that controversies may be decided on their merits.” North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962). “Before a default may be vacated, a party must demonstrate excusable neglect, a meritorious defense and due diligence in seeking relief upon learning of the default.” Brandt v. Dolman, 421 So.2d 689 (Fla. 4th DCA 1982).
The immediate case is factually similar to Wentnick since Appellant in this case retained counsel subsequent to the entry of default and had submitted an Emergency Motion to Set Aside Default Judgment. The Court subsequently denied undersigned counsel’s Emergency Motion to Set Aside Default Judgment. In neither instance were counsel granted an evidentiary hearing. Therefore, this Court should overturn the lower court’s entry of final default judgment.

IV. THE LOWER COURT ABUSED ITS DISCRETION IN STATING THAT APPELLANT HAD WAIVED ITS RIGHT TO ARBITRATE.

In compliance with precedent, the lower Court should have dismissed the case given that the Agreement between the parties contained a provision for arbitration in New York under New York law. In a similar case to the one at hand, the Court decided that under a default, a similar contract required arbitration and did not admit liability.
In this case the complaint alleged a contract between the parties, a copy of which was attached to the pleading, and a breach. The attached contract contained a provision that the sole remedy for breach would be by arbitration in California. The complaint did not allege that the breaching party had waived or refused to arbitrate, but instead sought a judicial remedy by money judgment. Plaintiff’s prayer for a money judgment was thus repugnant to the specific allegations of the contractual provisions, and therefore the pleading was a nullity. Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736 (Fla. 3rd DCA), cert. den., 252 So.2d 797 (Fla.1971); Harry P. Trawick, Jr., FLORIDA PLEADING AND PRACTICE, § 6-7, at 84-85 (1996 ed.).

Opti Inc. v. Sales Engineering Concepts Inc.,701 So.2d 1234, 1235 (Fla. 4th DCA 1997).
In the immediate case, Ailey’s pleadings make no reference to a waiver of arbitration, and thus Ailey’s prayer for a money judgment should have been considered repugnant in the present case as well. By the language in Opti, the default judgment should have never been entered before the arbitration clause issue had been determined, and ordered by the court. Default final judgment in this case was an inequitable remedy to the Appellant in light of the obligation to arbitrate.
Furthermore, with respect to the type of conduct that is an indicator of waiver of the right to arbitrate, “The [U.S.] Supreme Court has made clear that the ‘strong federal policy in favor of enforcing arbitration agreements’ is based upon the enforcement of contract, rather than a preference for arbitration as an alternative dispute resolution mechanism . . . The essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” Raymond James Financial Services Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). The lower Court here held that there may be a waiver of the right to arbitrate by participating in litigation which conflicts with the right to arbitrate. In the immediate case, the Appellant engaged in no litigation which conflicted with the right to arbitrate.
In Miller & Solomon General Contractors Inc. v. Brennan’s Glass Inc., 824 So.2d 288, 290-91 (Fla. 4th DCA 2002), the Court indicated what type of participation in litigation resulted in a waiver of the right to arbitrate: “Based upon these cases, it is clear that the prevailing view looks at the defendant’s intention in responding. Is the defendant’s response to attack the merits? If so, then waiver is acknowledged. If the defendant’s response is not directed at the merits of the actual underlying claim, then waiver should not be inferred.” Here, Appellant filed no responsive pleadings with the Court, nor did it participate in adverse litigation until the time of defending against default. Thus, the court abused its discretion in finding waiver of arbitration had occurred.
The trial court judge cited to Bojadzijev v. Roanoke Technology Corp., 997 So. 2d 1251 (5th DCA 2009) in her Order denying the Emergency Motion to Set Aside Default Judgment, stated that Defendant waived its right to arbitrate. The facts in the present case, however, are inherently different than the facts in Bojadzijez. In Bojadzijez, the Court conducted a hearing to determine if the defendant had any meritorious defenses prior to grating an entry of default. Here, no evidentiary hearing was held nor allowed. In the Bojadzijez case, the Court found the Appellant had failed to raise excusable neglect, due diligence, or meritorious defenses. Here, the Appellant has raised excusable neglect, due diligence, and meritorious defenses. Thus the facts and circumstances are not analogous to the Bojadzijez case relied on by the lower court.
Therefore, the trial court abused its discretion by relying on the facts of Bojadzijev to issue her Order denying Appellant’s Emergency Motion to Set Aside Default. In compliance with precedent, this Court should vacate the default final judgment and permit the parties to arbitrate per the Agreement between the parties.

CONCLUSION
Ailey claimed, and was awarded, judgment against Arena Advertising & Publishing, LLC for the years of 2007-2008, and 2008-2009 as per Appellee’s exhibits. Arena Advertising & Publishing, LLC was not established with the State of Florida until March 24, 2008. Ailey was awarded judgment against an incorrect party, and Appellant based upon Appellee’s failure to join an indispensible party. Furthermore, despite its protests, the trial court abused its discretion in denying Appellant an evidentiary hearing, which materially and adversely affected its right to present evidence on its behalf prior to entry of final default.
The trial court also abused its discretion in denying Appellant’s Emergency Motion to Set Aside Default Judgment when there were issues raised regarding excusable neglect. Appellant was only able to retain new counsel days before the entry of default, and new counsel had no opportunity to present evidence to the lower court prior to the entry of default. Further, Appellant’s current counsel filed an Emergency Motion to Set Aside Default, which was also denied without a hearing.
Finally, the lower court abused its discretion in stating that arbitration had been waived and abused its discretion in relying upon the inapposite Bojadzijev case in its rationale. Here, the Appellant did not materially participate in the litigation whereas in Bojadzijev the party participated in litigation, which are materially different facts than the Bojadzijev case upon which the lower court relied.
Therefore, Appellant requests that this court vacate the Final Default Judgment and mandate that the parties arbitrate the matter.
Respectfully submitted this ___ day of June, 2010.

___________________
Michael D. Stewart, Esq.
FL Bar No.: 12457
Attorney for Appellant/Defendant
One Biscayne Tower, Suite 1650
2 South Biscayne Boulevard
Miami, FL 33131
Telephone: (305) 394-8546
Fax: (866) 380-8986

PROOF OF SERVICE
I HEREBY certify that the APPELLANT’S INITIAL BRIEF, was served by REGULAR MAIL on the attorneys for Appellee/Plaintiff of record/interested parties in this action: Proskauer Rose, LLP, One Boca Place, Suite 340 West, 2255 Glades Road, Boca Raton, Florida 33431 on this __________ day of June, 2010.

___________________
Michael D. Stewart, Esq.
FL Bar No.: 12457
Attorney for Appellant/Defendant
One Biscayne Tower, Suite 1650
2 South Biscayne Boulevard
Miami, FL 33131
Telephone: (305) 394-8546
Fax: (866) 380-8986

CERTIFICATE OF COMPLIANCE

I HEREBY certify that this brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2), and certify that the Initial Brief is typed in fourteen (14) point Times New Roman font.

___________________
Michael D. Stewart, Esq.
FL Bar No.: 12457
Attorney for Appellant/Defendant
One Biscayne Tower, Suite 1650
2 South Biscayne Boulevard
Miami, FL 33131
Telephone: (305) 394-8546
Fax: (866) 380-8986

Emergency Motion to Reset Foreclosure Sale

IN THE CIRCUIT COURT, OF THE
17TH JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA

,

Plaintiff, CASE NO:

V.

.,

Defendants.

—————————————————————–/

EMERGENCY MOTION TO RESET FORECLOSURE SALE DATE

Defendant , by and through undersigned counsel, moves to cancel and reschedule the mortgage foreclosure sale scheduled in the instant matter and in support thereof states:
1. A foreclosure sale date was set for September 23, 2014.
2. The sale needs to be cancelled for the following reason(s):
a. Plaintiff and Defendant are continuing to be involved in loss mitigation.
WHEREFORE, Plaintiff respectfully requests this Court enter an order cancelling the foreclosure sale and order that it be rescheduled and requests such other and further relief as this Court deems just and proper.
/s/ Michael D. Stewart
Michael D. Stewart, Esq.
FL Bar No. 12457
The 200 Building
200 SE 1st St., Suite 701
Miami, FL 33131
Telephone: (305) 590-8909

CERTIFICATE OF SERVICE
I CERTIFY that a true copy of the foregoing was furnished by E-MAIL SERVICE to: on this 22 day of January, 2014.

/s/ Michael D. Stewart
The Law Offices of Michael D. Stewart
Michael D. Stewart, Esq. FL Bar No. 12457
200 S.E. 1st Street, Suite 701
Miami, Florida 33131
Telephone: (305) 590-8909
Fax: (305) 415-9920
ms@themiamilaw.com

Carriage of Goods by Sea Act – COGSA – Shipping Law

TITLE 46, APPENDIX App. > CHAPTER 28
CHAPTER 28—CARRIAGE OF GOODS BY SEA

§ 1300. Bills of lading subject to chapter
§ 1301. Definitions
§ 1302. Duties and rights of carrier
§ 1303. Responsibilities and liabilities of carrier and ship
§ 1304. Rights and immunities of carrier and ship
§ 1305. Surrender of rights; increase of liabilities; charter parties; general average
§ 1306. Special agreement as to particular goods
§ 1307. Agreement as to liability prior to loading or after discharge
§ 1308. Rights and liabilities under other provisions
§ 1309. Discrimination between competing shippers
§ 1310. Weight of bulk cargo
§ 1311. Liabilities before loading and after discharge; effect on other laws
§ 1312. Scope of chapter; “United States”; “foreign trade”
§ 1313. Suspension of provisions by President
§ 1314. Effective date; retroactive effect
§ 1315. Short title