BEZTAK CONSTRUCTION COMPANY, A MICHIGAN CORPORATION, AND BEZTAK OF PALMER RANCH LIMITED PARTNERSHIP, A MICHIGAN LIMITED PARTNERSHIP, BY AND THROUGH ITS AUTHORIZED AGENT WALLACE J. MACDONALD, APPELLANTS,
v.
KESLING CARPETS, INC., A DIVISION OF OLD MILL INDUSTRIES, INC., APPELLEE
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Beztak Construction appealed the trial court's denial of its motion to vacate a clerk's default and final default judgment. The appellate court reversed, holding that the clerk's entry of default was erroneous because Beztak had timely served papers (notice of appearance and motion for extension of time) before the default was entered, and Florida Rule 1.500 does not require that papers be filed or served 'timely'—only that they be filed or served.
The court reversed, holding that the clerk's entry of default was erroneous because Beztak had served papers in the action before the default was entered. Florida Rule 1.500 requires only that a party fail to 'file or serve' any paper—it does not contain the word 'timely'—so service by mail on April 16 satisfied the rule despite occurring on the same day the default was entered. The trial court erred in not vacating the default and final judgment when the matter was brought to its attention by motion, and no showing of excusable neglect, meritorious defense, or due diligence was required.
[1] A clerk's default is erroneously entered when a party has served papers in the action, even if those papers were served after the deadline for filing an initial response.
[2] Service of a notice of appearance and motion for extension of time by mail is complete upon mailing.
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Civil Procedure 1.500, dealing with defaults and final default judgments thereon, allows a clerk to enter a default when a party against whom affirmative relief is sought has failed "to file or serve" any paper in the action.”
Establishes the statutory standard for entry of clerk's default under Rule 1.500
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Join FLexlaw to unlock all legal intelligenceOn March 26, 1991, Kesling Carpets served a complaint on Beztak's registered agent. On April 16, 1991, twenty-one days after service, Beztak's attorne…
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DANAHY, Judge.
The appellants appeal an order denying their motion to vacate a clerk’s default and a final default judgment entered thereon ex parte. We reverse.
On March 26, 1991, a complaint by the appellee (Kesling) was served upon the registered agent of the appellants (Beztak). On.April 16, 1991, twenty-one days after service, Beztak’s attorney served by mail a notice of appearance and a motion for extension of time. On the same date, Kesling obtained the entry of a clerk’s default against Beztak. Kesling then filed a motion for final default judgment. On April 19, 1991, the trial court entered a final default judgment ex parte. Two weeks later Beztak filed a motion to vacate the default and the final default judgment. Prior to the hearing on that motion, Beztak served an answer to Count 1 of the complaint with affirmative defenses and a motion to dismiss Count 2.
Florida Rule of Civil Procedure 1.500, dealing with defaults and final default judgments thereon, allows a clerk to enter a default when a party against whom affirmative relief is sought has failed “to file or serve” any paper in the action. On the day that the clerk’s default was entered in this case, Beztak had served papers. Service by mail is complete upon mailing. Rule 1.080(b), Fla.R.Civ.P. Rule 1.500 does not contain the word “timely.”
Accordingly, the entry of the default by the clerk was erroneous. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Publisher’s Vending Services, Inc., 296 So. 2d 570 (Fla. 3d DCA), cert, denied, 305 So. 2d 208 (Fla.1974); Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So. 2d 744 (Fla. 4th DCA 1974). Entry of the final default judgment based upon the clerk’s default was likewise erroneous. When the matter was called to the trial court’s attention by motion to vacate filed two weeks later, the trial court erred by not vacating the default and the final judgment. Because a default was entered erroneously by the clerk at a time when Beztak had, in fact, served papers in the cause, there was no requirement that Beztak establish excusable neglect, a meritorious defense, or due diligence. Mo-Con Properties, Inc. We recognize the rule announced by the supreme court in Picchi v. Barnett Bank, 521 So. 2d 1090 (Fla.1988), but believe that rule does not apply here.
For the reasons set forth in this opinion, we reverse and remand for further proceedings.
SCHOONOVER, C.J., and FRANK, J., concur.
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U.S. Bank Nat'l Ass'n v. Lloyd, 981 So. 2d 633 (Fla. 2d DCA 2008)…occurred before the entry of the default. The Awerbach firm served its notice of appearance by mail and by facsimile on January 8, 2007. Service by mail is complete upon mailing. Fla. R. Civ. P. 1.080(b); Beztak Constr. Co. v. Kesling Carpets, Inc., 596 So. 2d 1297, 1297 (Fla. 2d DCA 1992). Under rule 1.080(b), facsimile transmission occurs when transmission is complete. The clerk’s default was not entered until January 11, 2007, three days after service of the notice of appearance was complete. . We note tha…
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Clive Stuart-Findlay v. Bank OF Am., 183 So. 3d 468 (Fla. 4th DCA 2016)…e defendant] had, in fact, served papers in the cause, there was no requirement that [the defendant] establish excusable neglect, a meritorious defense, or due diligence.” Beztak Constr. Co. v. Kesling Carpets, Inc., a Div. of Old Mill Indus., Inc., 596 So. 2d 1297, 1298 (Fla. 2d DCA 1992) (citation omitted). Third, the bank argues that the default was proper because the borrower failed to answer the complaint after the court ordered him to do so, and then failed to take action in the case for two years. Once…
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Great N. Granite, Inc. v. Arbizzani, 773 So. 2d 1286 (Fla. 1st DCA 2000)…PER CURIAM. This case is controlled by the Second District Court of Appeal’s decision in Beztak Construction Co. v. Kesling Carpets, Inc., 596 So. 2d 1297 (Fla. 2d DCA 1992). Accordingly, we 'REVERSE and REMAND for further proceedings. JOANOS, KAHN, and BROWNING, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blaise Picchi v. Barnett Bank OF S. Fla., N.A., 521 So. 2d 1090 (Fla. 1988)
- Morgan v. State, 289 So. 2d 744 (Fla. 4th DCA 1974)
- Mo-Con Props., Inc. v. Am. Mech., Inc., 289 So. 2d 744 (Fla. 4th DCA 1974)
- Merrill Lynch v. Publisher's Vending Servs., Inc., 296 So. 2d 570 (Fla. 3d DCA 1974)
- Harshbarger v. Miami Herald Publ'g Co., 305 So. 2d 208 (Fla. 1974)
- Publisher's Vending Servs., Inc., 305 So. 2d 208 (Fla. 1974)