J. ED STRAUGHN, AS EXECUTIVE DIRECTOR OF THE STATE OF FLORIDA, DEPARTMENT OF REVENUE, APPELLANT,
v.
G. J. M., INC., APPELLEE
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Florida appellate court affirmed denial of motion to set aside default where final judgment had already been entered, requiring instead a motion under Rule 1.540(b) to set aside the judgment itself.
Once a final judgment is entered on a default, a party seeking relief must move to set aside the final judgment under Fla.R.Civ.P. 1.540(b), not merely move to set aside the default entry.
[1] A motion to set aside a default is improper when a final judgment has already been entered on the default; the appropriate remedy is a motion under Fla.R.Civ.P. …
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Once the final judgment had been entered upon the default, appellant should have sought to have the final judgment and default set aside by a motion pursuant to Fla.R.Civ.P. 1.540(b)”
Court explaining the proper procedural remedy available to appellant
The Department of Revenue's Executive Director served an answer by mail prior to entry of default by the clerk, but a final judgment was entered on th…
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PER CURIAM.
Appellant seeks review of an order denying his motion to set aside a default contending the default was erroneously entered since his answer had been served prior to entry of the default. Appellant relies upon Mon-Con Properties, Inc. v. American Mechanical, Inc., 289 So. 2d 744 (Fla. 4th DCA 1974); Merrill Lynch, Pierce, Fenner & Smith, Inc., 296 So. 2d 570 (Fla. 3d DCA 1974), cert. denied, 305 So. 2d 208 (Fla.1974); and Willyerd v. Anderson, 312 So. 2d 504 (Fla. 4th DCA 1975). Although it is conceded that appellant’s answer was served by mail prior to entry of the default by the clerk pursuant to Fla.R.Civ.P. 1.500(a), the trial court properly denied appellant’s motion to set aside the default since a final judgment had been entered before appellant moved to set aside the default and appellant’s motion did not seek to set aside the final judgment previously entered. Once the final judgment had been entered upon the default, appellant should have sought to have the final judgment and default set aside by a motion pursuant to Fla.R.Civ.P. 1.540(b), or the court, under Fla.R.Civ.P. 1.500(d), could have granted relief upon its own motion.
The order denying the motion to set aside the default is AFFIRMED.
McCORD, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.
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Keeter v. The Bank OF NEW York Mellon fka The Bank of N.Y. for the Certificateholders of Cwalt, Inc., 194 So. 3d 469 (Fla. 1st DCA 2016)…of Civil Procedure 1.540(b). See Torres v. One Stop Maint. & Mgmt., Inc., 178 So. 3d 86 (Fla. 4th DCA 2015); Stephens v. Bank of N.Y., 765 So. 2d 294 (Fla. 1st DCA 2000); Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980); Straughn v. G.J.M., Inc., 372 So. 2d 1163 (Fla. 1st DCA 1979). Appellant correctly notes that the clerk could not enter ’a default against her when she had filed a motion the previous day. See Stuart-Findlay v. Bank of Am., N. A., 183 So. 3d 468, 471 (Fla. 4th DCA 2016) (holding that when a…
Authorities Cited
- Morgan v. State, 289 So. 2d 744 (Fla. 4th DCA 1974)
- Mo-Con Props., Inc. v. Am. Mech., Inc., 289 So. 2d 744 (Fla. 4th DCA 1974)
- Merrill Lynch v. Publisher's Vending Servs., Inc., 296 So. 2d 570 (Fla. 3d DCA 1974)
- Harshbarger v. Miami Herald Publ'g Co., 305 So. 2d 208 (Fla. 1974)
- Publisher's Vending Servs., Inc., 305 So. 2d 208 (Fla. 1974)
- Willyerd v. Anderson, 312 So. 2d 504 (Fla. 4th DCA 1975)