MIRA ALFREDO FIERRO, ETC. ET AL., APPELLANTS,
v.
VICTOR FREEMAN LEWIS, ETC. ET AL., APPELLEES
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A noticed hearing is not required for an order of default against a party who has filed a notice of appearance but failed to plead or otherwise defend.
Appellants failed to file responsive pleadings after being served with a motion for default. A default and final judgment were entered against them wi…
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COBB, Judge.
The issue presented by this appeal is whether or not a noticed hearing is required for the entry of an order of default against a party who has filed a notice of appearance in the case. See Rule 1.500(b), Florida Rules of Civil Procedure. The appellants, who did not file any responsive pleadings or motions, suffered entry of a default and a final judgment thereupon at an unnoticed hearing, which was held after service upon appellants of a copy of the appellees’ motion for default. After receipt of the motion the appellants still did not file a response, but instead relied upon their interpretation of the rules that they could file such a response at any time prior to a noticed hearing on the motion. After entry of judgment, the appellants moved to set aside the default on the basis that it was entered without notice of hearing. The trial court denied the motion. We affirm.
Rule 1.500(b), Florida Rules of Civil Procedure, does not require a noticed hearing for entry of an order of default against a party who has failed to plead or otherwise defend; it requires only that a copy of the application for default be served upon a party who has filed or served a paper in the action. See Trawick, Fla. Prac. and Proc., § 25-2 (1979).
In the instant case, the appellants filed a motion to vacate on grounds of mistake and excusable neglect. The evidence adduced at the hearing on this motion shows that the reason for inaction was the interpretation of appellants’ counsel that a notice of hearing in regard to the motion for default would be forthcoming, and this notice would set “the absolute deadline” for action to be taken by the appellants. That is not good cause. This record supports entry of the default by the trial judge and his refusal to set it aside.
AFFIRMED.
COWART, J., concurs.
DAUKSCH, C. J., dissents without opinion.
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Gulf Maint. & Supply, Inc. v. Barnett Bank OF Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989)…we point out that rule 1.500(b) only requires service of the application for default; service of a notice of hearing on the application for default is not required. Picchi v. Barnett Bank of South Florida, N.A., 521 So. 2d at 1091; Fierro v. Lewis, 388 So. 2d 1361 (Fla. 5th DCA 1980). But [*818] rule 1.500(e) requires the court, after the proper entry of a default, to accord a right of trial by jury to the parties when required by statute or the constitution “if it is necessary to take an account or to determ…
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Blaise Picchi v. Barnett Bank OF S. Fla., N.A., 521 So. 2d 1090 (Fla. 1988)…SHAW, Justice. We review Barnett Bank of South Florida v. Picchi, 503 So. 2d 1373 (Fla. 4th DCA 1987), to answer a certified question and to resolve conflict with Fierro v. Lewis, 388 So. 2d 1361 (Fla. 5th DCA 1980). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Petitioner Picchi sued respondent Barnett Bank. Service was made on 31 December 1985. Respondent’s attorney did not file a responsive pleading within twenty days as required…
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Cohen v. Barnett Bank OF S. Fla., N.A., 433 So. 2d 1354 (Fla. 3d DCA 1983)…plaintiff did not comply with Fla.R.Civ.P. 1.500(b). The result is that' the default and the consequent judgments3 it secured must be set aside. Okeechobee Insurance Agency, Inc. v. Barnett Bank of Palm Beach County, supra; see also Fierro v. Lewis, 388 So. 2d 1361 (Fla. 5th DCA 1980);4 Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla. 3d DCA 1979). The orders and judgment under review are therefore reversed and the cause remanded with directions to permit Cohen a reasonable time to plead to the complaint and f…
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