AFFORDABLE HOMES, INC., NOW KNOWN AS AFFORDABLE CONSTRUCTION, ESTHER SILBER, SAUL SILBER, O.G. FEASTER, JR., SHIRLEY FEASTER, SILBER FEASTER INVESTMENTS, INC., NOW KNOWN AS INVESTMENTS OF S AND F, INC., APPELLANTS,
v.
MCKINNEY-GREEN, INC., APPELLEE
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The court held that a motion to dismiss, even if without merit, is a sufficient response to preclude a default judgment for failure to plead or defend.
Appellants moved to dismiss a mortgage foreclosure complaint due to a pleading deficiency. Appellee sought a default order, arguing the motion was unr…
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WENTWORTH, Judge.
Appellants seek review of a default order and judgment of liability in a mortgage foreclosure action. The default was entered upon a determination that appellants had failed to plead or otherwise defend the action. We find that the court erred by declining to consider appellants’ motion to dismiss as a defensive response. We therefore reverse the default order and judgment of liability.
After a complaint seeking foreclosure of a mortgage was filed appellants moved for dismissal, contending that because of a pleading deficiency the complaint did not state a cause of action. Appellee sought a default order, asserting that the motion to dismiss was unresponsive. The court agreed with appellee, indicating that the motion to dismiss was without merit. The court denied the motion to dismiss and entered an order of default.
Although the motion to dismiss may have been without merit, the court did not characterize it as frivolous or lacking a justiciable issue. The motion was a sufficient response so as to preclude the entry of a default for failure to plead or defend the action. See Irwindale Company N.V. v. Three Islands Olympus, 474 So. 2d 406 (Fla. 4th DCA 1985). Appellants’ motion to dismiss should have been accorded such effect, and the court should not have entered an order of default or judgment of liability.
The order of default and judgment of liability are reversed and the cause is remanded.
SMITH, C.J., and BOOTH, J., concur.
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Bd. OF Cnty. Comm'rs OF Hillsborough Cnty. v. Lopez, 518 So. 2d 372 (Fla. 2d DCA 1987)…2d 588 (Fla.1987). More recently, the Third District has approved exactly such a formula for determining compensation in cases deemed to be too complex and time-consuming to fit within the parameters of the statute. Metropolitan Dade County v. Gold, 509 So. 2d 407 (Fla. 3d DCA 1987). We find this to be a satisfactory means of harmonizing the legislative concerns underlying the statute with the constitutional problems faced by the supreme court in Makemson, and so follow the decision in Gold. In the Thirteent…
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White v. Bd. OF Cnty. Comm'rs FOR Pinellas Cnty., 524 So. 2d 428 (Fla. 2d DCA 1988)…and unusual time. It is not difficult to imagine a frame of reference under which a “routine” case would require a greater investment of time on the part of defense counsel than a complex case. The time expended in Metropolitan Dade County v. Gold, 509 So. 2d 407 (Fla. 3d DCA 1987), which was found to be “an extraordinary and unusual case entitling the Special Assistant Public Defender to a legal fee in excess of the amount set forth in the Statute,” id. at 408, was 110 hours, which was substantially less th…
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Hillsborough Cnty. v. Marchese, 519 So. 2d 728 (Fla. 2d DCA 1988)…found that while the court could award attorney’s fees in excess of those statutorily established, the court must impose those fees based upon the hourly rate established by the chief judge in that circuit. See also Metropolitan Dade County v. Gold, 509 So. 2d 407 (Fla. 3d DCA 1987). Our decision here is controlled by Lopez. Accordingly, we grant the petition for writ of certiorari and remand this case to the circuit court with directions to recalculate Marchese’s fee based upon the hourly rate established b…
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- Irwindale Co., N.V. v. Three Islands Olympus, 474 So. 2d 406 (Fla. 4th DCA 1985)