FRANK MENA, APPELLANT,
v.
JULIO DOCUMET, APPELLEE
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The Florida District Court of Appeal reversed a default judgment against defendant Frank Mena because the plaintiff failed to properly serve the motion for default as required by Florida Rules of Civil Procedure. The court held that service on an unauthorized substitute attorney does not constitute valid service on the defendant.
Service of the motion for default on the unauthorized substitute attorney did not constitute proper service on the defendant, and therefore the default judgment was improperly entered and must be reversed.
[1] A default judgment is improper if the plaintiff fails to serve the defendant with notice of the motion for default when the defendant has previously filed pleadings in th…
[2] Service of a motion for default upon an attorney who has not entered an appearance on behalf of the defendant does not constitute proper service upon the defendant.
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Join FLexlaw to unlock all legal intelligence“the plaintiff Julio Documet failed to serve the defendant Frank Mena with notice of the default herein as required by Fla.R.Civ.P. 1.500(b)”
Establishes the fundamental basis for reversal - improper service of the motion for default
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Join FLexlaw to unlock all legal intelligencePlaintiff Julio Documet obtained a default judgment against defendant Frank Mena. The defendant had previously filed pleadings in the case and was rep…
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PER CURIAM.
The final default judgment under review is reversed because, simply stated, the plaintiff Julio Documet failed to serve the defendant Frank Mena with notice of the default herein as required by Fla.R.Civ.P. 1.500(b).
Without dispute, the defendant Frank Mena had filed pleadings below prior to the entry of the default below, and therefore the plaintiff Julio Documet was required by the above rule to serve his motion for default on the said defendant. The record reflects, however, that the subject motion was not served upon the defendant Frank Mena or his attorney of record, Lister Witherspoon IY. Instead, the motion was served upon Bennett Fultz, an attorney whom Mr. Witherspoon had asked “to handle any problems that came up” while Mr. Witherspoon (a solo practitioner) was out of town attending a legal seminar. Mr. Fultz, however, never entered an appearance in the case on behalf of the defendant Frank Mena, and, accordingly, it is plain that service of the motion for default upon Mr. Fultz did not constitute service upon the defendant Frank Mena. Indeed, the plaintiff’s certificate of service on the motion for default does not represent that Mr. Fultz was counsel for the defendant Frank Mena. This being so, it is clear that the default was improperly entered below. Crocker Inv., Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305 (Fla. 3d DCA 1987), rev. denied, 525 So. 2d 877 (Fla.1988); Reicheinbach v. Southeast Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985); Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla. 3d DCA 1979).
The final default judgment under review is reversed, and the cause is remanded to the trial court with directions (a) to grant the defendant Frank Mena’s motion to set aside the default entered herein, and (b) to allow the defendant Frank Mena to file an answer to the complaint herein.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Reicheinbach v. Se. Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985)
- Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla. 3d DCA 1979)
- Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305 (Fla. 3d DCA 1987)