J. CHESNEY CARSON, APPELLANT,
v.
CHERYL LEE AND RICHARD ALLEN LEE, APPELLEES
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The Florida appellate court vacated a default judgment against Carson because he was not afforded proper notice of the motion for default as required by the rules of civil procedure. The court held that notice must be given in sufficient time to allow the defendant to take action after receipt.
The court held that the notice Carson received was insufficient because it did not provide him with adequate time to take action after receipt. The default judgment was vacated, and the case was remanded for further proceedings.
[1] A party who has filed a pleading in an action is entitled to notice of any application for default.
[2] Notice of an application for default must be given in sufficient time to permit the party to take action after receipt.
Previewing 2 of 4 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“Florida Rule of Civil Procedure 1.500(b) provides that if a party files any paper in an action he must be served with notice of any application for default.”
Establishes the rule requiring service of notice of default applications on parties who have filed papers in the action.
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Join FLexlaw to unlock all legal intelligenceAppellees filed a three-count complaint against appellant Carson. After his motion to dismiss was denied, Carson was given until May 24, 1983, to file…
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OTT, Chief Judge.
This appeal raises the question of whether appellant, defendant below, was afforded proper notice of appellees’ application for default prior to entry of the default and final default judgment. We hold that the notice appellant received was insufficient. Consequently, the default and default final judgment are vacated.
Appellees filed a three-count complaint against appellant. Following service of process, appellant filed a motion to dismiss. The motion was denied, and appellant was given until May 24, 1983, a period of twenty days, to file his answer. No answer or other pleading was filed. On July 27, 1983, appellees filed their motion for default. A notice of hearing on appellees’ motion for default was dated July 26, 1983, and mailed to appellant notifying him of a hearing on the motion scheduled for July 28, 1983. Upon appellees’ ex parte application, the trial court signed an order of default which bears the date July 27, 1983.
Appellant filed answer, affirmative defenses, and counterclaim on August 3, 1983. He also filed a motion to set aside, alleging he had not received the notice of hearing until July 29, 1983. The motion was denied, and a default final judgment was rendered September 7, 1983.
Florida Rule of Civil Procedure 1.500(b) provides that if a party files any paper in an action he must be served with notice of any application for default. Appellant was entitled to notice because of his motion to dismiss and the pleadings which followed. The notice required by rule 1.500(b) would be meaningless unless given in sufficient time to permit some action to be taken after its receipt. Cohen v. Barnett Bank of South Florida, N.A., 433 So. 2d 1354, 1355 (Fla.3d DCA 1983). Not only did appellees fail to comply with rule 1.500(b), they also ignored Florida Rule of Civil Procedure 1.090(e), requiring five days to be added to the time for taking action when service is made by mail. Id. Because appellant did not receive notice until after the default was signed, the default and resultant judgment must be set aside. See Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla.3d DCA 1979). Therefore, appellant’s answer, affirmative defenses, and counterclaim were timely filed.
The default and final default judgment are VACATED, and this cause is REMANDED for further proceedings.
CAMPBELL and SCHOONOVER, JJ„ concur.
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Conn. Gen. Dev. Corp. v. Guson, 477 So. 2d 665 (Fla. 5th DCA 1985)…g default set aside and vacated. Therefore, the trial court erred in denying appellants’ motion to set aside the order entering a default. REVERSED AND REMANDED. ORFINGER, SHARP and COWART, JJ., concur. . Fla.R.Civ.P. 1.500(b); Carson v. Lee, 450 So. 2d 930 (Fla. 2d DCA 1984); Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980); Fierro v. Lewis, 388 So. 2d 1361 (Fla. 5th DCA 1980). See Trawick, Fla. Frac. & Proc., § 25-2 (1984).…
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Osiel Gonzalez v. Judas Moriyon, 553 So. 2d 249 (Fla. 3d DCA 1989)…ion; thus, appellee/plaintiff’s failure to produce a certificate showing proof that he notified appellant of his application for a default judgment, Fla.R.Civ.P. 1.080(f), is grounds to vacate the trial court’s order granting default. Carson v. Lee, 450 So. 2d 930 (Fla. 2d DCA 1984); Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla. 3d DCA 1979). Reversed.…
Authorities Cited
- Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla. 3d DCA 1979)
- Cohen v. Barnett Bank OF S. Fla., N.A., 433 So. 2d 1354 (Fla. 3d DCA 1983)