ZEPHYR AVIATION SERVICES, INC., APPELLANT,
v.
AMERIJET INTERNATIONAL, INC., APPELLEE
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Zephyr Aviation challenges a clerk's default entered without notice after defense counsel obtained an extension of time to answer and engaged in settlement negotiations. The court holds that a letter from out-of-state defense counsel confirming an extension of time to plead constitutes a 'paper' under Florida Rule of Civil Procedure 1.500(a), thereby requiring notice before a default can be entered.
Yes. A letter from defense counsel confirming an extension of time to plead is a 'paper' within the meaning of Florida Rule of Civil Procedure 1.500(a), and therefore notice of an application for default is required before such a default can be entered.
[1] A clerk's default entered without notice is improper when defense counsel has communicated in writing with plaintiff's counsel regarding the action.
[2] A written communication from defense counsel confirming an extension of time to plead constitutes a "paper" within the meaning of Florida Rule of Civil Procedure 1.500(a)…
Previewing 2 of 3 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“the clerk can enter a default when the defendant has "failed to file or serve any paper in the action."”
States the text of Florida Rule of Civil Procedure 1.500(a) that governs when clerks may enter defaults.
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Join FLexlaw to unlock all legal intelligenceAppellant defendant was served with a complaint on January 28, 1993. Defendant's California counsel obtained a written agreement from plaintiff's coun…
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KLEIN, Judge.
We reverse an order denying a motion to vacate a clerk’s default obtained without notice, and hold that notice was required because out-of-state counsel had written to plaintiffs counsel confirming an extension of time to answer and advising about settlement negotiations.
Appellant defendant was served in California with a copy of a complaint on January 28, 1993, and defendant’s California counsel obtained an agreement from plaintiffs counsel to extend the time for filing an answer to March 9,1993, because of ongoing settlement discussions. On March 11, 1993, no answer having been filed, plaintiff obtained a clerk’s default without notice. When defendant received notice of the default on March 29, 1993, a copy of which was attached to plaintiffs motion for entry of final judgment, it promptly moved to vacate the default, attaching affidavits and a proposed answer with affirmative defenses and a counterclaim.
In the affidavit the California counsel stated that the parties were actively negotiating a settlement when the March 9, 1993 deadline passed, that because of these negotiations he thought it was unnecessary to meet the deadline, and that he was not aware that a default could be entered without notice where he had previously communicated in writing to counsel for plaintiff.
Florida Rule of Civil Procedure 1.500(a) provides that the clerk can enter a default when the defendant has “failed to file or serve any paper in the action.” Letters similar to this one have been held to constitute a “paper” under the rule and thus require notice before default. In EFG Tampa Associates v. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988), a letter drafted by New York counsel requesting information about the lawsuit was held sufficient to require notice of an application for default. In Reicheinbach v. Southeast Bank, 462 So. 2d 611 (Fla. 3d DCA 1985), a letter from a lawyer, advising he had not yet been retained, was held sufficient to require notice. In NCR v. Cannon & Wolfe, 501 So. 2d 157 (Fla. 1st DCA 1987), a letter signed by a paralegal of a law firm was held sufficient to require notice.
The plaintiff argues that the letter from the out-of-state lawyer, who was not admitted to practice in Florida, cannot constitute the paper contemplated by the rule, citing Zettler v. Ehrlich, 384 So. 2d 928 (Fla. 3d DCA 1980). Although that case did involve a letter from an out-of-state lawyer, that was not the only reason the court held the letter to be insufficient. The court also noted that the letter was mailed more than 20 days after service of the complaint and that the letter said that the defendant would not defend the Florida action.
The purpose of a default is to “speed the action toward conclusion on the merits where possible, not to expedite litigation by ex parte actions and surprise.” Gulf Maintenance & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813, 816 (Fla. 1st DCA 1989). We conclude that a letter from defense counsel, confirming an extension of time to plead, is a “paper” within the meaning of the rule, thus requiring notice of an application for a default, and we therefore reverse.
DELL, C.J., and FARMER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brooks v. Ocean Vill. Condo. Ass'n, Inc., 656 So. 2d 275 (Fla. 3d DCA 1995)…served with notice of the application for default.” (Emphasis added). Under the decided cases, the letter sent by Brooks in response to the complaint was a “paper” for purposes of Rule 1.500(b). Zephyr Aviation Servs., Inc. v. Amerijet Int’l, Inc., 631 So. 2d 371, 372 (Fla. 4th DCA 1994); Gulf Maintenance & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813, 816 (Fla. 1st DCA 1989); EGF Tampa Assoc’s v. Edgar V. Bohlen, G.F.G.M. A.G., 532 So. 2d 1318, 1321 (Fla. 2d DCA 1988); Crocker Invs., Inc. v.…
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Duran v. John Stalder, Inc., 686 So. 2d 627 (Fla. 5th DCA 1996)…county court to appear in the case. Nevertheless, case law indicates that documents filed or served by out-of-state counsel qualify as “paper,” within the meaning of Rule 1.500(a). See Zephyr Aviation Services, Inc. v. Amerijet International, Inc., 631 So. 2d 371 (Fla. 4th DCA 1994); EGF Tampa Associates v. Edgar V. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988). The courts construe Rule 1.500(a) in liberal fashion to minimize ex parte actions and surprise. See also Reicheinbach v. Southeast Bank, N.A, 462 So. 2…
Authorities Cited
- Gulf Maint. & Supply, Inc. v. Barnett Bank OF Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989)
- Reicheinbach v. Se. Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985)
- EGF Tampa Assocs. v. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988)
- NCR Corp. v. Cannon & Wolfe Lumber Co., Inc., 501 So. 2d 157 (Fla. 1st DCA 1987)
- Grant v. State, 384 So. 2d 928 (Fla. 3d DCA 1980)
- Zettler v. Ehrlich, 384 So. 2d 928 (Fla. 3d DCA 1980)