STEVE ROCHE, ET AL., APPELLANTS,
v.
COMMERCIAL TECHNICAL CONSULTANTS COMPANY, ETC., APPELLEE
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The Fifth District Court of Appeal reversed a trial court's order denying a motion to set aside a default judgment, holding that a default should be vacated when a responsive pleading was properly served by mail before or on the date the default was entered, regardless of whether the default was entered by the clerk or the court.
The entry of a default must be set aside where a party against whom the default has been entered demonstrates that appropriate service of a responsive pleading was made on or prior to the date on which the default was entered, regardless of whether the default was entered by the clerk or the court. Service by mail is complete upon mailing, and an attorney's certificate of service is prima facie proof of service.
[1] A default entered against a party must be set aside when that party demonstrates that a responsive pleading was served on or prior to the date the default was entered.
[2] Service of a responsive pleading by mail is complete upon mailing.
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Join FLexlaw to unlock all legal intelligence“The entry of a default should be set aside where a party against whom the default has been entered demonstrates that appropriate service of a responsive pleading was made on or prior to the date on which the default was entered, whether the default was entered by the Clerk pursuant to Florida Rule of Civil Procedure 1.500(a), Maintenance Electric 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)”
Establishes the core holding that proper service of responsive pleading before default entry mandates vacation of the default
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Join FLexlaw to unlock all legal intelligenceSteve Roche and other appellants were defendants in a civil action. The trial court entered a default against them. Appellants had served their answer…
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ORFINGER, Judge.
We reverse the order denying appellants’ motion to set aside the default entered against them, for the reason that their answer to the complaint was served by mail the day before the default was entered.1 The entry of a default should be set aside where a party against whom the default has been entered demonstrates that appropriate service of a responsive pleading was made on or prior to the date on which the default was entered, whether the default was entered by the Clerk pursuant to Florida Rule of Civil Procedure 1.500(a), Maintenance Electric 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 service. Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984).
The certificate of service on the responsive pleading indicating service by mail on the day prior to entry of the default was not challenged below. The trial court thus erred in not setting aside the default, and it was unnecessary for the court to address the issues of excusable neglect or a meritorious defense. We do not reach the question of whether the trial court erred in refusing to enter a default against the appellee on appellants’ counterclaim for failure to file a timely response to the counterclaim, because an order denying a motion for default is neither a final order nor an appealable non-final order under Florida Rule of Appellate Procedure 9.180(a)(3).
REVERSED and REMANDED for further proceedings consistent herewith.
SHARP, C.J., and DAUKSCH, J., concur. . Florida Rule of Civil Procedure 1.500 governs defaults and provides in relevant part:
(a) By the Clerk. When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper. (b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default.
(c)Right to Plead. A party may plead or otherwise defend at any time before default is entered. If a party in default files any paper after the default is entered, the clerk shall notify the party of the entry of the default. The clerk shall make an entry on the progress docket showing the notification.
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Nasrallah v. Smith, 538 So. 2d 554 (Fla. 5th DCA 1989)…ult to be set aside if adequate proof is presented that the paper was mailed on the same day that the default was entered, (emphasis supplied) 488 So. 2d at 586. This court addressed this issue in Roche v. Commercial Technical Consultants Company, 534 So. 2d 1243 (Fla. 5th DCA 1988) wherein we stated: The entry of a default should be set aside where a party against whom the default has been entered demonstrates that appropriate service of a responsive pleading was made on or prior to the date on which the d…
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Nants v. Faria, 553 So. 2d 369 (Fla. 5th DCA 1989)…89), this court held that it was error to refuse to set aside a default when the defendant had served a motion to dismiss on the same day the default was entered. In so holding, this court relied on Roche v. Commercial Technical Consultants Company, 534 So. 2d 1243 (Fla. 5th DCA 1988), in which this court stated that the entry of a default should be set aside where a party against whom the default has been entered demonstrates the filing of a responsive pleading on, or prior to, the date on which the default w…
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Williams v. Express Leasing, Inc., 575 So. 2d 768 (Fla. 5th DCA 1991)…ay plead or otherwise defend at any time before a default is entered. A default must be set aside where the defendant demonstrates it has served a responsive pleading prior to entry of the default. Roche v. Commercial Technical Consultants Company, 534 So. 2d 1243 (Fla. 5th DCA 1988); Maintenance Electric Co. v. Hesson, 493 So. 2d 94 (Fla. 4th DCA 1986); See also Nants v. Faria, 553 So. 2d 369 (Fla. 5th DCA 1989); Nasrallah v. Smith, 538 So. 2d 554 (Fla. 5th DCA 1989). In this case, the motion to dismiss ref…
Previewing 3 of 5 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)
- Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984)
- Barnett Bank OF Sw. Fla., N.A. v. Anderson, 488 So. 2d 923 (Fla. 2d DCA 1986)
- Maint. Elec. Co., Inc. v. Hesson, 493 So. 2d 94 (Fla. 4th DCA 1986)