BARRY TRUPIN, APPELLANT,
v.
DARRELL BURGESS, APPELLEE
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Appellant Barry Trupin appeals the trial court's denial of his motion to vacate a default judgment in a lawsuit by Darrell Burgess arising from alleged improper sale of investment securities. The appellate court affirms the trial court's order, finding no gross abuse of discretion in denying the motion to vacate the default.
The trial court did not abuse its discretion in denying the motion to vacate the default judgment. Although a clerk is not authorized to enter a default under Rule 1.500(a) when a party has filed papers, this rule does not apply here because the trial court expressly authorized entry of a default in its order denying Trupin's motion to dismiss.
[1] A trial court's order authorizing the entry of a default judgment upon failure to file an answer is not rendered improper by the subsequent filing of a paper by the defau…
[2] A trial court does not abuse its discretion in denying a motion to vacate a default judgment when presented with conflicting affidavits and finding in favor of the party…
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Join FLexlaw to unlock all legal intelligence“Absent compliance, the trial court had ordered a default to be entered. [...] the trial court had ordered a default to be entered”
Establishes that the trial court's prior order authorizing default upon failure to answer was sufficient to authorize the clerk's entry of default.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellee Burgess sued appellant Trupin for losses from the sale of investment securities. The trial court found service of process was proper and deni…
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DOWNEY, Judge.
Appellant appeals from an order of the trial court dated March 20, 1991, denying his motion to vacate a default judgment. While the plaintiffs are different and the suits separate, this case is extremely similar factually to the case of Trupin v. Wallquist, 605 So. 2d 1295 decided by this court on this date. Identical counsel appear for the respective parties.
Like Wallquist, this case arises out of a claim by appellee for losses sustained by him as a result of appellant’s offering and sale of investment securities. Like Wallquist, the trial court found that service of process upon appellant was proper and denied appellant’s motion to dismiss, granting appellant fifteen days to file his answer. The order expressly provided that a clerk’s default should be entered if appellant failed to file his answer timely and appellee moved to enter final judgment of default. Prior to the hearing date, counsel for the parties had a telephone conversation on or about November 20, 1990. According to appellee’s affidavits, Mr. Jones, counsel for appellees, told Mr. Powers, counsel for appellant, that a default had been entered against appellant. Powers advised that he was not representing appellant in this case, but that he was trying to help appellant and had mailed an answer for him on the date the default was entered, November 20, 1990. In any event, no answer was filed and thus the trial court entered judgment against appellant. We note the anomaly that, as in Wallquist, once again no answer was ever received by Jones or the clerk’s office although Powers said an answer was mailed.
As in Wallquist, the trial judge in this case was presented with conflicting affidavits as to the facts and he, too, found in favor of the appellee. The record presented here is very similar to that in Wallquist and we conclude here, as we did there, that no gross abuse of discretion was shown.
We pause only to answer appellant’s contention that a clerk’s default was improper in the present case because the clerk is not authorized to enter a default under rule 1.500(a), Florida Rules of Civil Procedure, when the defaulted party has filed any paper in the cause. We recognize the rule, but hold that it does not come into play here because the default was authorized by the trial court’s order denying the appellant’s motion to dismiss and requiring appellant to answer within fifteen days. Absent compliance, the trial court had ordered a default to be entered.
In view of the foregoing, we affirm the order appealed from.
WARNER, J., and OWEN, WILLIAM C„ Jr., Senior Judge, concur.