BARNETT BANK OF SOUTHWEST FLORIDA, N.A., APPELLANT,
v.
CHARLES V. ANDERSON, JR., AND ANDERSON PETROLEUM PRODUCTS, INC., A FLORIDA CORPORATION, APPELLEES
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Barnett Bank's default judgment was reversed because the trial court entered the default on the same day the bank served its amended answer, violating Florida Rule of Civil Procedure 1.500(c) which permits a party to plead or defend before a default is entered.
A default judgment must be set aside when entered on the same day the defendant serves a responsive pleading, as the defendant has timely exercised its right to plead or defend before default.
[1] A default judgment must be vacated when the trial court enters the default on the same day the defendant serves a responsive pleading, as the defendant has timely exercis…
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Civil Procedure 1.500(c), permits a party to plead or otherwise defend before a default is entered.”
The court's statement of the controlling procedural rule that governs when defaults may be entered.
Barnett Bank served an amended answer to the second amended complaint on October 21, 1985, but the trial court signed a default order on that same dat…
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SANDERLIN, Judge.
Barnett Bank appeals from the trial court’s refusal to set aside a default judgment. The record discloses a series of procedural events preceding the entry of the default judgment. The pertinent occurrences began with October 21, 1985. On that date Barnett Bank served an amended answer to the second amended complaint. On that same day, the trial court’s default order was signed and ultimately served upon counsel on October 25, 1985. Barnett Bank moved to vacate the default and for rehearing. The motions were heard, denied, and this appeal was initiated. We find the trial court erred and we reverse.
Florida Rule of Civil Procedure 1.500(c), permits a party to plead or otherwise defend before a default is entered. The default order before us was signed by the trial judge on the same day the appellant served the appellee, by mail, with its amended answer. In Gibraltar Service Corp. v. Lone & Associates, Inc., 488 So. 2d 582 (Fla. 4th DCA 1986), a default was set aside upon “adequate proof ... that the paper was mailed on the same day that the default was entered.” Id. at 586. At the moment when Barnett Bank served its amended answer to the appellee’s second amended complaint, the trial court could not properly enter a default. See Prestige Vending, Inc. v. TRS Properties, Inc., 481 So. 2d 1287 (Fla. 2d DCA 1986); Crowder v. Oroweat Foods Co., 447 So. 2d 1038 (Fla. 2d DCA 1984). We reverse the order of default and remand the case for further proceedings consistent with this opinion.
DANAHY, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nasrallah v. Smith, 538 So. 2d 554 (Fla. 5th DCA 1989)…responsive pleading was made on or prior to the date on which the default was entered. ... 534 So. 2d at 1243. See also Maintenance Electric Company, Inc. v. Hesson, 493 So. 2d 94 (Fla. 4th DCA 1986); Barnett Bank of Southwest Florida v. Anderson, 488 So. 2d 923 (Fla. 2d DCA 1986); Hodkin v. Ledbetter, 487 So. 2d 1214 (Fla. 4th DCA 1986). Accordingly, we reverse the final judgment entered against appellants and [*556] remand this matter to the trial court for proceedings consistent with this opinion. REVER…
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Roche v. Commercial Tech. Consultants Co., 534 So. 2d 1243 (Fla. 5th DCA 1988)…tric Co. v. Hesson, 493 So. 2d 94 (Fla. 4th DCA 1986); Gibraltar Service Corp. v. Lone and Associates, Inc., 488 So. 2d 582 (Fla. 4th DCA 1986), or as here, by the court pursuant to Rule 1.500(b), Barnett Bank of Southeast Florida, N.A. v. Anderson, 488 So. 2d 923 (Fla.2d DCA 1986). Rule 1.500(c) permits a party to plead or otherwise defend at any time before a default is entered. Service by mail is complete upon mailing, Rule 1.080(b), and an attorney’s certificate of service is prima facie proof of such ser…
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Nants v. Faria, 553 So. 2d 369 (Fla. 5th DCA 1989)…date on which the default was entered. Other courts have similarly held that a default entered on the same day that a responsive pleading or defensive motion is filed must be set aside. See, e.g., Barnett Bank of Southwest Florida, N.A. v. Anderson, 488 So. 2d 923 (Fla. 2d DCA 1986). Indeed, the third district court of appeal has held that a default, even though signed by the trial judge, must be set aside if a pleading or defensive motion is filed before the default order is filed with the clerk. Humbert v.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gibraltar Serv. Corp. v. Lone & Assocs., Inc., 488 So. 2d 582 (Fla. 4th DCA 1986)
- Prestige Vending, Inc. v. TRS Props., Inc., 481 So. 2d 1287 (Fla. 2d DCA 1986)
- RAY v. Kehoe, 447 So. 2d 1038 (Fla. 4th DCA 1984)
- Crowder v. Oroweat Foods Co., 447 So. 2d 1038 (Fla. 2d DCA 1984)