LENHAL REALTY, INC., APPELLANT,
v.
TRANSAMERICA COMMERCIAL FINANCE CORPORATION, AS SUCCESSOR IN INTEREST TO BORG WARNER LEASING, A DIVISION OF BORG WARNER ACCEPTANCE CORPORATION, FLORIDA EASTERN DEVELOPMENT COMPANY, INC., OF HOLLYWOOD, A FLORIDA CORPORATION, D/B/A RUFFYS, ROSE LABARCA, INDIVIDUALLY AND CONSTENZO LABARCA, INDIVIDUALLY, GLENDALE FEDERAL BANK, A FEDERAL SAVINGS BANK F/K/A FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF BROWARD COUNTY, RESOLUTION TRUST CORPORATION, AS CONSERVATOR FOR HOLLYWOOD FEDERAL SAVINGS BANK, A FEDERAL SAVINGS BANK F/K/A HOLLYWOOD FEDERAL SAVINGS & LOAN ASSOCIATION AND RUSSELL T. KOHUTH, INDIVIDUALLY, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Lenhal Realty's motion to vacate a default judgment was granted because the appellant filed a motion to dismiss before the default order was actually entered with the clerk, satisfying Fla. R. Civ. P. 1.500(c).
A party may plead or defend before default is entered, and an order is not deemed entered until actually filed with the clerk, so filing a motion to dismiss before the clerk stamps the default order constitutes timely defense.
[1] An order granting default is not deemed entered until actually filed with the clerk, and a party's motion to defend filed before such filing constitutes timely defense under Fla. …
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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”
Citing Chester, Blackburn & Roder, Inc. v. Marchese and Graves v. Giordano for the principle that filing with the clerk is the critical moment for order entry.
Appellees' motion for default was scheduled for hearing on March 17, 1992 at 8:45 a.m. Appellant did not attend but filed a motion to dismiss and moti…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Florida Rule Of Civil Procedure 1.500(C) cases and more on FLexlaw
PER CURIAM.
Lenhal Realty appeals from an order that denies its motion to vacate a default. We reverse.
Appellees’ motion for default was set for hearing on March 17, 1992, at 8:45 a.m. Appellants did not attend the hearing, but filed a motion to dismiss plaintiffs’ complaint and motion to strike at 9:15 a.m. on March 17, as evidenced by the clerk’s stamp. At the hearing, the trial court granted appellees’ motion for default against appellants; however, that 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, until it is actually filed with the clerk.” Since at the time the order granting default was entered, appellant had already filed its motion to dismiss, entry of default was error. Graves.
Accordingly, we reverse the order denying appellant’s motion to set aside the default and remand for further proceedings.
GUNTHER, POLEN and FARMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Lenhal Realty, Inc. v. Transamerica Commercial Fin. Corp., 615 So. 2d 207 (Fla. 4th DCA 1993)…rca and other defendants. A default was entered against Lenhal, although in a separate appeal that default was vacated and the matter returned to the trial court for further proceedings. See Lenhal Realty, Inc. v. Transamerica Commercial Fin. Corp., 611 So. 2d 79 (Fla. 4th DCA 1992). As to Lenhal, at all times pertinent to this court’s inquiry into the correctness of the summary judgment Lenhal was precluded by the default from asserting any defensive matter going to the issue of liability. See Harless v. K…
-
Drake v. The Pub. Health Tr. OF Dade Cnty., 832 So. 2d 172 (Fla. 3d DCA 2002)…, 175 (Fla. 5th DCA 1992)(“[t]he filing of the motion to dismiss precluded any subsequent entry of default in respect to any complaint pending at that time.”) (citations omitted); see also Lenhal Realty Inc. v. Transamerica Commercial Finance Corp., 611 So. 2d 79, 80 (Fla. 4th DCA 1992); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734, 735 (Fla. 3d DCA 1980). However, with respect to appellant’s Motion to Dismiss and to Quash Service due to alleged insufficiency of service, the Record supports…
-
Sansbury v. Wells Fargo Bank, N.A., 204 So. 3d 985 (Fla. 5th DCA 2016)…filed a response to the complaint prior to the hearing on the plaintiffs motion for default, both the default against the appellant and the default final judgment were improvidently granted); Lenhal Realty Inc. v. Transamerica Commercial Fin. Corp., 611 So. 2d 79 (Fla. 4th DCA 1992) (holding that the entry of default was error where defendants filed a motion to dismiss the complaint before the default had been entered); Carder v. Pelican Cove W. Homeowners Ass’n, Inc., 595 So. 2d 174 (Fla. 5th DCA 1992) (hol…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)
- Graves v. Giordano, 590 So. 2d 1113 (Fla. 4th DCA 1991)