RODNEY DESSBERG

v.

SARASOTA HARBOR EAST ASSOCIATION, INC.

VILLANTI, Judge. Rodney Dessberg appeals from a default final judgment of foreclosure entered in favor of the Sarasota Harbor East Association (the Association). The final judgment followed the trial court's Order Granting Motion for Judicial Default and Entry of Judicial Default against Dessberg and its order denying Dessberg's motion to vacate the judicial default.

The trial court erred by granting the judicial default because Dessberg had filed a responsive pleading and because the Association filed the motion for default without first contacting Dessberg's counsel. These errors compel reversal.

On December 18, 2020, the Association filed a foreclosure action against Dessberg to enforce a recorded claim of lien based on unpaid condominium assessments.

On February 9, 2021, Dessberg, via counsel, filed a motion for extension of time to file a response.

The trial court granted the motion, giving Dessberg until February 23, 2021, to file a response. Dessberg failed to file a response by the deadline.

On June 21, 2021, the Association filed a motion for judicial default. Dessberg filed a Combined Response in Opposition to Plaintiff's Motion for Default and Motion to Dismiss the complaint the same day.

The trial court granted the Association's motion and entered the judicial default against Dessberg, also on the same day.

The trial court's reasons for doing so were that Dessberg failed to file a response to the Association's complaint prior to February 23, 2021, and that Dessberg's delay in filing a responsive motion was not due to excusable neglect. Dessberg's subsequent motions to vacate the default and for rehearing were denied.

We review an order denying a motion to vacate a judicial default for abuse of discretion. See Singh v. U.S. Bank, N.A., 223 So. 3d 436, 437-38 (Fla. 2d DCA 2017) ("To the extent that the foreclosure judgment is based on the order of default, we review that order for an abuse of discretion." (citing Kirkland's Stores, Inc., v. Felicetty, 931 So. 2d 1013, 1015 (Fla. 4th DCA 2006))). "[D]efault judgments are generally not favored by the courts, and a court's discretion should be liberally exercised and all reasonable doubt resolved in favor of granting applications for relief so as to permit a determination of the controversy upon the merits." Paul v. Wells Fargo Bank, N.A., 68 So. 3d 979, 981 (Fla. 2d DCA 2011) (quoting U.S. Tobacco Co. v. Hartford Accident & Indem. Co., 444 So. 2d 81, 83 (Fla. 2d DCA 1984)); see also U.S. Bank Nat'l Ass'n v. Lloyd, 981 So. 2d 633, 639-40 (Fla. 2d DCA 2008) ("Where there exists any reasonable doubt in the matter, and where there has been no trial on the merits, the trial court is to exercise its discretion in the direction of vacating the default." (quoting Hornblower v. Cobb, 932 So. 2d 402, 405 (Fla. 2d DCA 2006))).

I. A Matter of Timing Florida Rule of Civil Procedure 1.500(c) provides that "[a] party may plead or otherwise defend at any time before default is entered." This rule has been uniformly interpreted in Florida "as providing that the entry of default is improper when a party has filed a responsive pleading or otherwise defended before the entry of default." Pro-Art Dental Lab, Inc., v. V-Strategic Grp., LLC, 986 So. 2d 1244, 1259 (Fla. 2008).

Accordingly, this issue turns on whether Dessberg filed a responsive pleading before or after entry of the judicial default. The Association argues that the judicial default was "issued" before Dessberg filed his Response in Opposition to the Motion for Default and Motion to Dismiss. It presents the critical order of events thusly:  The Association filed its motion for default on June 21, 2021, at 9:55 a.m.  The Association emailed a copy of its motion for default to Dessberg at 9:56 a.m.  The trial court emailed the order granting the motion for default to the parties at 11:21 a.m.  Dessberg filed his Combined Response in Opposition to Plaintiff's Motion for Default and Motion to Dismiss at 11:28 am.

Therefore, the Association argues, because the trial court emailed the order at 11:21 a.m. and Dessberg filed his Combined Response in Opposition to Plaintiff's Motion for Default and Motion to Dismiss at 11:28 a.m., Dessberg's responsive pleading was filed after the trial court issued the default.

Accordingly, the Association submits, the entry of default was not precluded by rule 1.500(c).

This argument is disingenuous. The Association relies on the clerk's filing time stamp to prove the time it filed its motion for default and the time Dessberg filed his motion in opposition and motion to dismiss, whereas it relies on the time indicated on an email cover sheet to show when the trial court emailed the order to the parties. But the fact that the trial court may have emailed a copy of the default to Dessberg prior to Dessberg's filing of a responsive pleading is irrelevant. The only relevant question is whether Dessberg filed a responsive pleading before the default was entered. It is well settled that "[a]n order is not deemed 'entered,' even if it has been signed by the trial court, until it is actually filed with the clerk." Pinnacle Corp. of Cent. Fla. v. R.L. Jernigan Sandblasting & Painting, Inc., 718 So. 2d 1265, 1266 (Fla. 2d DCA 1998); see also Graves v. Giordano, 590 So. 2d 1113, 1113-14 (Fla. 4th DCA 1991) (same) (citing Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734, 735 (Fla. 3d DCA 1980)).

In this case, the Association provides no support for the proposition that the time indicated on an email purporting to forward an attached document is the legal equivalent of filing that document with the clerk. The reason for this is obvious: There is none. Contrary to the Association's portrayal of the facts, the relevant facts are these:  The Association filed its motion for default on June 21, 2021, at 9:55 a.m.  The Association emailed a copy of its motion for default to Dessberg at 9:56 a.m.

 Dessberg filed his Combined Response in Opposition to Plaintiff's Motion for Default and Motion to Dismiss at 11:28 am.  The clerk filed the trial court's order granting the motion for default at 4:42 p.m. Somewhat similar facts were considered by the Fourth District in Lenhal Realty, Inc. v. Transamerica Commercial Financial Corp., 611 So. 2d 79 (Fla. 4th DCA 1992). In that case, a hearing was held on the plaintiffs' motion for default at 8:45 a.m. on March 17, 1992. The defendants moved to dismiss the complaint at 9:15 a.m. on the day of the hearing.

The trial court granted the plaintiffs' motion for default at the hearing, but the order was not filed by the clerk until the following day. The Fourth District held that because the defendant had filed its motion to dismiss before the order granting default was entered, the entry of default was error. 611 So. 2d at 80. Here, the order granting default was entered after Dessberg had filed his motion to dismiss.

Accordingly, as the Fourth District concluded in Lenhal Realty, the entry of the default judgment in this case was error.

II. A Question of Notice We also agree with Dessberg's claim that he was provided with insufficient notice. "If the plaintiff is aware that the defendant is represented by counsel and intends to defend the litigation on the merits, it is required to serve the defendant with notice of the application for default and to present the matter to the court for entry of the default." Makes & Models Mag., Inc. v. Web Offset Printing Co., 13 So. 3d 178, 181 (Fla. 2d DCA 2009) (citing Lloyd, 981 So. 2d at 640); see also Gulf Maint. & Supply, Inc., v. Barnett Bank of Tallahassee, 543 So. 2d 813, 816 (Fla. 1st DCA 1989) ("A default is a procedural matter within the control of the attorney, so plaintiff's counsel should contact the attorney known to be representing a defendant to determine whether the latter intends to proceed in the matter before causing a default to be entered." (emphasis added)). "A default that does not comply with this requirement 'must be vacated without regard to whether the defendant can establish a meritorious defense or whether the defendant can demonstrate inadvertence or excusable neglect.' " Makes & Models Mag., 13 So. 3d at 181 (emphasis added) (quoting Lloyd, 981 So. 2d at 640).

In this case, the Association emailed Dessberg a copy of the motion for default after it had filed the motion with the trial court.

Accordingly, the trial court erred by denying Dessberg's motion to vacate the default because the Association "had actual knowledge that the defendant was represented by counsel and intended to defend the lawsuit, but failed to contact the defendant's counsel prior to seeking default." See Lloyd, 981 So. 2d at 640 (quoting Nat'l Union Fire Ins. Co. of Pittsburgh v. McWilliams, 799 So. 2d 378, 380 (Fla. 4th DCA 2001)). Based on the above, we reverse the final judgment of foreclosure and remand with instructions to vacate the order granting judicial default and for further proceedings consistent with this opinion.

Reversed and remanded. KHOUZAM and BLACK, JJ., Concur. Opinion subject to revision prior to official publication.