FREDERICK E. GRAVES AND BETTY GRAVES, APPELLANTS,
v.
VINCENT A. GIORDANO AND IONE M. GIORDANO, ET AL., APPELLEES
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The appellate court reversed a default judgment against the appellants, finding that their responsive pleadings were filed before the default was officially entered. The court emphasized that a party can defend at any time before a default is entered and that an order is not entered until filed with the clerk.
No, the entry of a default judgment was inappropriate. Florida Rule of Civil Procedure 1.500(c) allows a party to defend at any time before a default is entered, and an order is not considered entered until it is filed with the clerk.
“a party may plead or otherwise defend at any time before default is entered.”
Establishes the rule that responsive pleadings can be filed any time before a default is officially entered.
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Join FLexlaw to unlock all legal intelligenceAppellees sued to foreclose a mortgage. Appellants' motion to dismiss was denied, and they were given time to answer. Appellees moved for a default, w…
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PER CURIAM.
Appellees sued to foreclose a mortgage on realty in Broward County. Appellants’ motion to dismiss was denied on November 21, 1990, with leave to answer within twenty days. On January 19, 1991, appellees filed a motion for default which was heard and granted on January 24, 1991, and filed with the clerk at 2:39 p.m. Appellants had filed a response to the motion for default, a motion to correct order, and an answer, affirmative defenses and counterclaim on the same day, January 24, 1991, at 10:39 a.m. Thus, the record reflects that at the time the order granting a default was filed with the clerk the appellants’ various pleadings had already been filed. The trial court denied appellants’ motion for rehearing and to vacate the default and this appeal ensued.
Florida Rule of Civil Procedure 1.500(c) provides that “a party may plead or otherwise defend at any time before default is entered.” Furthermore, “an order may not be deemed to have been entered, notwithstanding its having been signed by the court, until it is actually filed with the clerk.” Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734, 735 (Fla. 3d DCA 1980). The record reflects that, when the default was “entered,” appellant’s answer and other pleadings were already filed. Thus, under the aforementioned rule, entry of a default was inappropriate.
Accordingly, the judgment appealed from is reversed and the cause is remanded to the trial court with directions to vacate the order of default and subsequent proceedings and for further appropriate proceedings.
GLICKSTEIN, C.J., and DOWNEY and GUNTHER, JJ., concur. BY ORDER OF THE COURT:
ORDERED that appellees’ Petition for rehearing filed January 27, 1992, is hereby denied and stricken; further,
ORDERED that upon consideration of appellants’ February 11, 1992, motion, the motion to strike petition for rehearing is hereby granted, the motion for entry of sanctions, including reasonable attorney’s fees and costs, is hereby denied.
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Clark v. Perlman, 599 So. 2d 710 (Fla. 1st DCA 1992)…cord Gulf Maintenance v. Barnett Bank, 543 So. 2d at 816; Board of Regents, Univ. of Florida v. Hardin, 393 So. 2d 1134 (Fla. 1st DCA 1981); Carder v. Pelican Cove West Homeowners Assoc., Inc., 595 So. 2d 174 (Fla. 5th DCA 1992); Graves v. Giordano, 590 So. 2d 1113 (Fla. 4th DCA 1991); Gould v. Ruzakowski, 322 So. 2d 567 (Fla. 3d DCA 1975). In the instant case, defendant/appellant filed a pro se answer and motion to dismiss directed to plaintiff/appellee’s original complaint. In so doing, she filed a “paper i…
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Lenhal Realty, Inc. v. Transamerica Commercial Fin. Corp., 611 So. 2d 79 (Fla. 4th DCA 1992)…order was not stamped in by the Clerk of the Court until the following day, March 18, 1992. Florida Rule of Civil Procedure 1.500(c) provides that “a party may plead or otherwise defend at any time before default is entered.” In Graves v. Giordano, 590 So. 2d 1113 (Fla. 4th DCA 1991), we agreed with our sister court in Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734, 735 (Fla. 3d DCA 1980), that “an order may not be deemed to have been entered, notwithstanding its having been signed by the court,…
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TLC Tr. & Jeff Brown v. Sender, 757 So. 2d 570 (Fla. 4th DCA 2000)…l Procedure 1.500(c) provides that “[a] party may plead or otherwise defend at any time before default is entered.” A default is, therefore, improper when a party has filed a responsive pleading prior to the entry of default. See Graves v. Giordano, 590 So. 2d 1113 (Fla. 4th DCA 1991). The record reflects that at the time the default judgment was entered, Brown’s answer and other pleadings were already filed. In order to enter a default after a party has appeared in the action by filing or serving any papers,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)