HAROLD TUTHILL, APPELLANT,
v.
ANTHONY DIEGUEZ, P.A., APPELLEE
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Harold Tuthill, a pro se defendant confined in state prison, was awarded a default judgment in favor of Anthony Dieguez for unpaid legal fees. The appellate court reversed because no valid default could be entered once an answer was filed, and the trial court's contradictory orders regarding trial versus default rendered the judgment improper.
The appellate court held that no default judgment could be entered once an answer had been filed, and that the trial court's judgment was improper due to the absence of a valid default and the failure to conduct the ordered hearing.
[1] A default judgment cannot be entered against a defendant who has filed an answer to the complaint.
[2] A trial court's order directing the transportation of a defendant from a correctional institution for a hearing must be honored.
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“First, with an answer filed, there was no basis to enter a default on the complaint.”
Establishes the fundamental legal principle that a default judgment cannot be entered once a defendant has filed an answer.
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Join FLexlaw to unlock all legal intelligenceTuthill, confined in Florida's correctional system, was sued by his former attorney Dieguez for an unpaid legal bill of $15,501.99. Tuthill filed a pr…
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PER CURIAM.
This cause was instituted by the appellee following a complaint to collect a past due bill for legal services. The defendant, the appellant herein, was confined to the state’s correctional system, and pro se filed an answer to the complaint and thereafter what purported to be a counterclaim. The counterclaim was met by a motion to dismiss which was granted. The matter was set, apparently for final hearing, and was met by a motion for continuance. Thereafter the trial court entered a judgment which indicated a default had been entered against the defendant and went on to award $15,501.99 as damages. The defendant filed a motion to set aside final judgment and thereafter a motion for an order to have the defendant transported from the correctional institution to Dade County for purposes of the hearing. The trial court entered an order directing the sheriff to transport the defendant to Dade County.1 Notwithstanding the order, the defendant was not transported and the defendant’s motion for rehearing or motion to vacate was denied. We reverse.
First, with an answer filed, there was no basis to enter a default on the complaint. Second, the defendant was not transported to Dade County pursuant to the court’s order. It is interesting to note that the order said he was to be “transported for trial” when a previous order indicated there was no trial, and that it was on “a default” that the final judgment was entered. It appears that no proper default was entered. The final judgment is set aside and the matter is returned to the trial court for a trial on the issues as made by the original complaint and answer. Reversed and remanded with directions.
. The order reads as follows:
"The Defendant having made a Motion before this Court requesting to be transported for a hearing scheduled on the 20th day of January, 1987, at 1:15 p.m., it is herein
ORDERED AND ADJUDGED that the Sheriff of Dade County transport the Defendant, HAROLD TUTHILL, to Dade County for trial on January 20, 1987, and it is further
ORDERED that the Sheriff of Dade County return the Defendant, Harold Tuthill to Avon Park Correctional Institution at the conclusion of said hearing.”
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Motor Sport Eng'g, Inc. v. CAR Point, Inc., 611 So. 2d 15 (Fla. 3d DCA 1992)…ult judgment is improper when the party against whom the default is entered has filed a responsive pleading prior to the motion for default. Mohammad v. J.I. Kislak Mortgage Corp., 534 So. 2d 818 (Fla. 3d DCA 1988); Tuthill v. Anthony Dieguez, P.A., 526 So. 2d 1045 (Fla. 3d DCA 1988). Although we find the trial court did not err in entering the default against Motor Sport Engineering, Inc., we reverse the default judgment and remand for determination of appropriate damages. Treble damages are not warranted whe…