CLEARVALLE, INC., A FLORIDA CORPORATION, AND FERDINANDO CHIARAVALLE, APPELLANTS,
v.
EDWARD B. COHEN, LIQUIDATING TRUSTEE FOR GUILIAS ENTERPRISES, INC., A DISSOLVED FLORIDA CORPORATION, APPELLEES
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HERSEY, Chief Judge.
This is an appeal of a final judgment entered upon a default which was imposed as a sanction for failure to appear at docket call. We reverse.
Appellants had filed pleadings in the trial proceedings prior to the withdrawal of their attorney. Where a party has participated in an action by filing a pleading “he shall be served with notice of the application for default.” Fla.R.Civ.P. 1.500. The application for default in the instant case was an ore tenus motion made by appellee at docket call when appellants were not present. There was no prior notice. It is well settled that a failure to produce proof of service of the required notice of application for default alone renders the entry of a default judgment erroneous. Gonzalez v. Moriyon, 553 So. 2d 249 (Fla. 3d DCA 1989); Connecticut General Dev. Corp. v. Guson, 477 So. 2d 665 (Fla. 5th DCA 1985); Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla. 3d DCA 1979); South Florida Vendorama, Inc. v. Colodny, 348 So. 2d 1212 (Fla. 4th DCA 1977).
It is not necessary to discuss appellants’ additional grounds for reversal.
REVERSED and REMANDED.
DOWNEY and WALDEN, JJ., concur.
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Zeigler v. Huston, 626 So. 2d 1046 (Fla. 4th DCA 1993)…ng his presence. Under either rule 1.200(c) or 1.500(b), it is fundamental that in order to properly enter a default after a party has appeared, notice of the intention to enter a default must be served on the party.4 See Clearvalle, Inc. v. Cohen, 561 So. 2d 1354 (Fla. 4th DCA 1990) (a default, imposed as a sanction for failure to appear at docket call, was reversed on the ground that the party did not have notice of the default as required by rule 1.500); Okeechobee Ins. Agency, Inc. v. Barnett Bank of Palm…
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Int'l Energy Corp. v. Darrel Hackett and Ralph Dwake, 687 So. 2d 941 (Fla. 3d DCA 1997)…v. Ocean Village Condominium Ass’n, Inc., 656 So. 2d 275, 276 (Fla. 3d DCA 1995); Zeigler v. Huston, 626 So. 2d 1046, 1048 (Fla. 4th DCA 1993); Neder v. Greyhound Financial Corp., 592 So. 2d 1218, 1218 (Fla. 1st DCA 1992); Clearvalle, Inc. v. Cohen, 561 So. 2d 1354, 1354 (Fla. 4th DCA 1990). Moreover, any default entered in violation of the due process notice requirement of Rule 1.500 must be set aside without any regard as to whether a meritorious defense is presented or excusable neglect is established. Yell…
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Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170 (Fla. 1st DCA 1996)…minium Assoc., Inc., 656 So. 2d 275 (Fla. 3d DCA 1995); Mesones v. Jabbour, 639 So. 2d 1000 (Fla. 4th DCA 1994); Zeigler v. Huston, 626 So. 2d 1046 (Fla. 4th DCA 1993); Clark v. Perlman, 599 So. 2d 710 (Fla. 1st DCA 1992); Clearvalle, Inc. v. Cohen, 561 So. 2d 1354 (Fla. 4th DCA 1990). A violation of rule 1.500(b) warrants the setting aside of a default without consideration of whether or not a meritorious defense was presented or whether excusable neglect was established. See Cohen v. Barnett Bank of South Fl…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla. 3d DCA 1979)
- S. Fla. Vendorama, Inc. v. Colodny, 348 So. 2d 1212 (Fla. 4th DCA 1977)
- Conn. Gen. Dev. Corp. v. Guson, 477 So. 2d 665 (Fla. 5th DCA 1985)
- Osiel Gonzalez v. Judas Moriyon, 553 So. 2d 249 (Fla. 3d DCA 1989)