Winfield v. Second National Bank of North Miami

BERANEK, Judge. This is an appeal by a defaulted defendant from a final judgment on a written loan guarantee. Although other defendants were present in the suit and actively defended, they have not appealed. The eventual final judgment granted no relief which was not specially prayed for in the complaint previously served upon appellant. The only issue on appeal goes to the procedures used in the judicial sale of certain personal property which was security for the loan. Appellant contends he was prejudiced only because he did not have a hearing on the question of whether the security was sold for market value. We note that appellant does not assert any irregularity regarding the sale and does not contend on appeal that the sale price was less than fair. The appellant chose not to defend the action and apparently relied upon the strong defense asserted by the non-appealing defendant. Within six days after the sale of the security under court order, appellant filed a formal notice of appearance in the suit but chose not to seek relief from the trial court. Under the particular circumstances here presented, we conclude that appellant may not assert the error complained of on appeal. The inaction below constituted a waiver in several respects and the final judgment is therefore affirmed. Green v. Barhydt, 121 Fla. 265, 163 So. 587 (1935); Maryland National Insurance Co. v. State of Florida, 243 So.2d 183 (Fla.3d DCA 1971), and American Home Assurance Company v. Keller Industries, Inc., 347 So.2d 767 (Fla.3d DCA 1977). AFFIRMED. DOWNEY, C. J., and GLICKSTEIN, J., concur.