MARK P. NASRALLAH, ET AL., APPELLANTS,
v.
STUART T. SMITH, ET UX., APPELLEES
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The Fifth District Court of Appeal reversed a default judgment against Nasrallah and his corporation, holding that a default must be set aside where responsive pleading was served on or before the date the default was entered. The court found the trial court erred in denying the motion to set aside the default when the motion to dismiss was mailed on the same day the default was entered.
The trial court erred in denying the motion to set aside the default. Under Florida law, a default should be set aside where a party demonstrates that service of a responsive pleading was completed on or before the day when the default was entered. This rule applies even when the default and service occurred on the same day.
[1] A default should be set aside when a responsive pleading is served on or before the day the default is entered.
[2] Service of a pleading 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.”
States the controlling legal standard for setting aside defaults in the Fifth District
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Join FLexlaw to unlock all legal intelligenceOn January 9, 1987, the Smiths filed a complaint against Nasrallah and his corporation for damages in tort, negligence, and breach of contract. No res…
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DANIEL, Judge.
Appellants, Mark P. Nasrallah and The Nasrallah Corporation, have taken this appeal from a final judgment entered in favor of appellees, Stuart and Kaye Smith. The final judgment was based upon a default which had been entered by the clerk pursuant to rule 1.500(a) of the Florida Rules of Civil Procedure. We find that the trial court erred in denying appellants’ motion to set aside the default and, therefore, reverse.
On January 9, 1987, Stuart and Kaye Smith filed a complaint against appellants for damages, asserting several claims in tort and negligence, as well as a claim for breach of contract. When no responsive pleading was filed, the Smiths, on February 27, 1987, filed a motion for default and the clerk entered default against appellants on that day. On that same day, appellants served by mail a motion to dismiss the Smiths’ complaint. Upon receiving notice that a default had been entered, appellants filed a motion to set aside the default. This motion was denied by the trial court. Following a trial on the issue of damages, the trial court entered final judgment against appellants.
Appellants contend it was error for the trial court to deny the motion to set aside the default because service of the motion to dismiss was completed on the same day that the default was entered. Appellants rely on Gibraltar Service Corporation v. Lone and Associates, Inc., 488 So. 2d 582 (Fla. 4th DCA 1986) for support. In Gibraltar, the Court held that a default should be set aside where the party against whom the default was entered demonstrates that service of a responsive pleading had been completed either on or before the day when the default was entered. In so ruling the court explained:
The rules do not specifically cover the situation that has arisen in this case in which the default was apparently entered on the same day that the pleading was served. The exact time of the entry of default can be determined by the clerk’s time stamp. Since service is complete upon mailing, there is no way of determining the exact instant of service except by the testimony of the person who placed the paper in the mail receptacle. In view of the desirability of having litigation determined on its merits rather than by technicalities, the better rule is to require the default 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 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 remand this matter to the trial court for proceedings consistent with this opinion.
REVERSED and REMANDED.
COBB, J., and NORRIS, W.A., JR., Associate Judge, concur.
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Becker v. RE/MAX Horizons Realty, Inc., 819 So. 2d 887 (Fla. 1st DCA 2002)…Vacating the Default Becker argues that it was error for the trial court not to vacate the default when his motion requesting a short extension to file the answer was served before the clerk’s default was entered. We agree. See Nasrallah v. Smith, 538 So. 2d 554 (Fla. 5th DCA 1989). The clerk may enter a default under rule 1.500(a), Florida Rules of Civil Procedure only if the defendant has failed to file or serve any paper in the action. For purposes of construing the right to enter a default under rule 1.…
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Nants v. Faria, 553 So. 2d 369 (Fla. 5th DCA 1989)…this detail but, even if it did, the entry of the default by the trial court [*370] was error. Florida Rule of Civil Procedure I.500(c) provides that a party may plead or otherwise defend at any time before default is entered. In Nasrallah v. Smith, 538 So. 2d 554 (Fla. 5th DCA 1989), 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 Cons…
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Williams v. Express Leasing, Inc., 575 So. 2d 768 (Fla. 5th DCA 1991)…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 reflects a service date by mail of January 8, 1990. Under Florida Rule of Civil Procedure 1.080(b), service by mail is considered complete upon mailing, and the certificate of service is prim…
Previewing 3 of 7 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)
- Fredric J. Hodkin v. Ledbetter, 487 So. 2d 1214 (Fla. 4th DCA 1986)
- Roche v. Commercial Tech. Consultants Co., 534 So. 2d 1243 (Fla. 5th DCA 1988)
- 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)