WILLIAM WILLIAMS, D/B/A ST. PETE AUTO SALES, APPELLANT,
v.
EXPRESS LEASING, INC., D/B/A BUDGET CAR SALES, APPELLEE
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William Williams appealed the trial court's denial of his motion to set aside a default judgment entered against him. The appellate court reversed, holding that a responsive pleading served by mail before the default was entered should have resulted in setting aside the default, even though the pleading was not physically received until after the default was entered.
Yes. The court held that a default must be set aside where a defendant demonstrates it has served a responsive pleading prior to entry of the default. Service by mail is complete upon mailing, not upon receipt, and a default entered after service by mail but before receipt should be set aside.
[1] A responsive pleading or motion may be served at any time before a default is entered, even if served after the time provided by court rule.
[2] Service of a responsive pleading or motion by mail is considered complete upon mailing.
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Join FLexlaw to unlock all legal intelligence“A default must be set aside where the defendant demonstrates it has served a responsive pleading prior to entry of the default.”
Establishes the governing legal standard for when defaults must be vacated.
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Join FLexlaw to unlock all legal intelligenceExpress Leasing filed a complaint against William Williams on December 4, 1989, and served him on December 15, 1989. On January 12, 1990, the plaintif…
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PER CURIAM.
On December 4, 1989, plaintiff Express Leasing filed a complaint in Volusia County Circuit Court against the defendant, William Williams, alleging breach of contract, fraud and breach of-an implied warranty. The complaint was served on the defendant in Pinellas County on December 15, 1989. On January 12, 1990, the plaintiff moved for a default alleging that the defendant had failed to serve any paper in the cause. A clerk’s default was entered on January 16, 1990. However, a motion to dismiss containing a service date of January 8, 1990 was filed on January 17, 1990.
Thereafter, on January 30, 1990, the defendant moved to set aside the default asserting that he had served a responsive pleading prior to the actual entry of the default. The trial court denied the motion to set aside default. The defendant moved for rehearing which the court denied, explaining:
The complaint in this action was served on the defendant on December 15, 1989. A default was entered by the Clerk on January 16, 1990. The defendant’s motion to dismiss was filed on January 17, 1990. A certificate of service by defense counsel on the motion to dismiss does not alter these dates.
The defendant appeals.
Under Florida Rule of Civil Procedure 1.500(a), when a defendant has failed to file or serve any paper in an action, the plaintiff may have the clerk enter a default against the defendant. Rule 1.500(c), however, provides that a party may 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 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 prima facie proof of such service. Rule 1.080(f). See Roche; Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984). The plaintiff, neither below nor on this appeal, has challenged the service date and the trial court did not find that the date was not true and correct.1
The legal principles controlling this case are:
(1) Although served after the time provided by court rule, a pleading or motion responsive to a complaint may be served anytime before a default is entered.
(2) The service of a responsive pleading or motion is deemed complete upon mailing.
(3) A default entered after service (mailing) of a response but before the response is received should be set aside.
On the authority of Roche v. Commercial Technical Consultants, the order denying the motion to set aside the default is
REVERSED AND THE CAUSE IS REMANDED.
W. SHARP, COWART and GRIFFIN, JJ., concur. . Plaintiff does argue that the defendant has, in attempting to serve plaintiff, mailed various subsequent pleadings and papers to wrong addresses but the remedy for this is not dismissal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Harris v. Harris, 670 So. 2d 1187 (Fla. 5th DCA 1996)…also found that the service was by delivery and not by mail as certified in the motion. Service would have been timely had the motion been mailed, because service by mail is deemed completed on the date of mailing. Williams v. Express Leasing, Inc., 575 So. 2d 768, 769 (Fla. 5th DCA 1991). On the other hand, service by delivery is deemed completed on the date of delivery. See Fla.R.Civ.P. 1.080(b). The trial court conducted a hearing and found the service by delivery was completed on 26 October 1994 and not o…
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Calderon v. Calderon, 26 So. 3d 688 (Fla. 5th DCA 2010)…port must be served within ten days after service of the report. This Court has held that service by mail is considered complete upon mailing, and the certificate of service is prima facie proof of the service. See Williams v. Express Leasing, Inc., 575 So. 2d 768, 769 (Fla. 5th DCA 1991); see also Fla. R. Civ. P. 1.080(f). Recently, addressing the same issue, the Second District, in Riley v. Riley, 14 So. 3d 1284 (Fla. 2d DCA 2009) determined objections were timely filed when mailing days were taken into acc…
Authorities Cited
- Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984)
- Nasrallah v. Smith, 538 So. 2d 554 (Fla. 5th DCA 1989)
- Roche v. Commercial Tech. Consultants Co., 534 So. 2d 1243 (Fla. 5th DCA 1988)
- Nants v. Faria, 553 So. 2d 369 (Fla. 5th DCA 1989)
- Maint. Elec. Co., Inc. v. Hesson, 493 So. 2d 94 (Fla. 4th DCA 1986)