J. ROSS ZIFF, MARYE LOUISE ZIFF, BLACK DIAMOND REFINING CORPORATION, A FLORIDA CORPORATION, BLACK DIAMOND REFINERY CORP., A FOREIGN CORPORATION, AND BLACK DIAMOND PETROLEUM, LTD., A FOREIGN CORPORATION, APPELLANTS,
v.
JAMES A. STUBER AND CHANDLER R. FINLEY, D/B/A LAW OFFICES OF STUBER & FINLEY, F/K/A LAW OFFICES OF JAMES A. STUBER, APPELLEES
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The appellate court reversed a clerk's default judgment, holding that a letter filed before the default constituted a "paper" under Florida Rule of Civil Procedure 1.500(a), which prevented the clerk from entering the default without court involvement. The court emphasized that once any paper is filed, only the court—not the clerk—may enter a default after notice of application.
A letter filed by a corporate officer requesting additional time to respond constitutes a "paper" within the meaning of Rule 1.500(a). Once any paper is filed, the clerk may not enter a default; only the court may enter a default under Rule 1.500(b) after service of notice of application for default. The clerk's default was improper, and the trial court erred in failing to vacate it.
[1] A clerk's default is improper when any paper has been filed by the defendant prior to the clerk's entry of default.
[2] Florida courts liberally construe the term "any paper" for the purpose of preventing a clerk's default.
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Join FLexlaw to unlock all legal intelligence“Once "any paper" has been served, rule 1.500(b) requires service of a notice of application for default and requires the court, not the clerk, enter any default.”
Establishes the core rule distinguishing clerk authority (no paper) from court authority (after any paper is filed)
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Join FLexlaw to unlock all legal intelligenceTwenty-three days after service of the complaint, plaintiffs applied for a clerk's default. Two days later, defendants Ziffs filed a letter on behalf …
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PER CURIAM.
The appellants claim error in the trial court’s failure to set aside a clerk’s default where a “paper” was filed prior to the default. The appellees essentially allege that the clerk’s default was appropriate because the paper, a letter, was, as a matter of law, interposed for delay. We reverse.
Twenty-three days after service, the plaintiffs applied for a clerk’s default. Two days later, the Ziffs filed a letter on behalf of themselves and Black Diamond Petroleum, Ltd., with Mr. Ziff signing as the chairman and chief executive officer of the corporation, asking the court for additional time to respond. Three days after the letter was filed, the clerk entered a default against them and the two other appellant corporations not mentioned in the letter. The plaintiffs moved for a default judgment and the defendants filed an answer and moved to set aside the clerk’s default. The trial court denied the motion to set aside the default. Thereafter, the court entered a default judgment.
Florida Rule of Civil Procedure 1.500(a) allows the clerk to enter a default where the defendant has served no “paper.” Rule 1.500(a) is based on the premise that the failure to respond to the complaint indicates that a defendant is not contesting the case. Once “any paper” has been served, rule 1.500(b) requires service of a notice of application for default and requires the court, not the clerk, enter any default. Gulf Maintenance & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989).
The default entered by the clerk, with such a “paper” in the file, was contrary to rule 1.500(a). Florida courts liberally construe the term “any paper.” A letter filed by an officer of a corporation advising the court that the corporation was attempting to hire counsel constituted a “paper.” Building Insp. Serv., Inc. of Dade v. Olemberg, 476 So. 2d 774 (Fla. 3d DCA 1985). Similarly, a letter acknowledging a telephone conversation wherein appellee allowed appellant an additional two days to respond to a third party complaint was deemed to be a “paper.” NCR Corp. v. Cannon & Wolfe Lumber Co., Inc., 501 So. 2d 157 (Fla. 1st DCA 1987).
The filing of a nonresponsive “paper” filed as a delaying tactic, such as a notice of appearance, is an abuse of process supporting a default entered by the court under subsection (b) of the rule without notice of hearing. Picchi v. Barnett Bank of S. Fla., 521 So. 2d 1090 (Fla.1988). By law, the court, not the clerk, is responsible for evaluating the content of a paper filed pri-or to entry of a default. Therefore, in the absence of a valid default, and because an answer was filed prior to any action by the trial court, the court erred by failing to vacate the default.
The judgment is reversed as to the Ziffs and Black Diamond Petroleum, Inc. and affirmed as to the other corporate appellants not mentioned in the “paper.” We remand for the default to be vacated and for further proceedings.
DELL, STONE and WARNER, JJ., concur.
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Geer v. David Neal Jacobsen, Brian James Almengual, & Almengual & Warner, P.A., 880 So. 2d 717 (Fla. 2d DCA 2004)…aint once as a matter of course before Almengual served a responsive pleading. See Fla. R. Civ. P. 1.190(a); Picchi v. Barnett Bank of S. Fla., N.A., 521 So. 2d 1090 (Fla.1988); Vanderberg v. Rios, 798 So. 2d 806 (Fla. 4th DCA 2001); Ziff v. Stuber, 596 So. 2d 754 (Fla. 4th DCA 1992). [*720] Once Geer served her amended complaint, Almengual had ten days in which to respond. Fla. R. Civ. P. 1.190(a). Almen-gual’s previously filed notice and motion did not carry over as a response to the amended complaint, and…
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M.W. v. SPCP Grp. V, LLC, 163 So. 3d 518 (Fla. 3d DCA 2015)…h v. Southeast Bank, N.A., 462 So. 2d 611, 611 (Fla. 3d DCA 1985); Green Solutions Int’l, Inc. v. Gilligan, 807 So. 2d 693, 695 (Fla. 5th DCA 2002); Nat’l Union Fire Ins. Co. v. McWilliams, 799 So. 2d 378, 379-80 (Fla. 4th DCA 2001); Ziff v. Stuber, 596 So. 2d 754, 755 (Fla. 4th DCA 1992); Gulf Maint. & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813, 816 (Fla. 1st DCA 1989); NCR Corp. v. Cannon & Wolfe Lumber Co., 501 So. 2d 157, 158 n. 1 (Fla. 1st DCA 1987); EGF Tampa Assocs. v. Edgar V. Bohlen,…
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Clive Stuart-Findlay v. Bank OF Am., 183 So. 3d 468 (Fla. 4th DCA 2016)…ation for default. Fla. R. Civ.. P. 1.500(a), (b) (emphasis added). “Once ‘any paper’ has been served, rule 1.500(b) requires service of a notice of application for default and .requires the court, not the clerk, enter any default.” Ziff v. Stuber, 596 So. 2d 754, 755 (Fla. 4th DCA 1992) (citation omitted). Accordingly, “when a party has served any paper in the action, a default entered by the clerk under Rule 1.500(a) ... is erroneous and upon timely application by such party, the default and any final judg…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gulf Maint. & Supply, Inc. v. Barnett Bank OF Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989)
- Blaise Picchi v. Barnett Bank OF S. Fla., N.A., 521 So. 2d 1090 (Fla. 1988)
- NCR Corp. v. Cannon & Wolfe Lumber Co., Inc., 501 So. 2d 157 (Fla. 1st DCA 1987)
- Bldg. Inspection Servs. v. Olemberg, 476 So. 2d 774 (Fla. 3d DCA 1985)
- Bunia G. Buckmire v. State, 476 So. 2d 774 (Fla. 3d DCA 1985)