YELLOW JACKET MARINA, INC., RICHARD CORBIN, (INDIVIDUALLY AND AS TRUSTEE FOR RICHARD E. CORBIN AND CORBIN TRUSTS); FLORIDA RIVER BOATS, INC., AND SUWANNEE BELLE, INC., APPELLANTS,
v.
TIM PALETTI AND MARK PALETTI, APPELLEES
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The appellate court reversed an order that denied a motion to set aside a default judgment. The court found that the appellees failed to provide adequate notice of their motion for default, violating procedural rules and due process.
No, the appellees did not provide adequate notice. The court held that the appellants were entitled to notice of the application for default because they had appeared in the action, and the appellees' motion at the summary judgment hearing did not constitute adequate notice.
[1] A party who has appeared in an action by filing or serving papers must be served with notice of an application for default when affirmative relief is sought against them.
[2] A violation of the rule requiring notice of an application for default warrants setting aside a default without consideration of a meritorious defense or excusable neglec…
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Join FLexlaw to unlock all legal intelligence“It is fundamental that when a party against whom affirmative relief is sought has appeared in an action by filing or serving papers, that party shall be served with notice of the application for default as required by Florida Rule of Procedure 1.500(b).”
Establishes the general rule regarding notice for default judgments when a party has appeared.
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Join FLexlaw to unlock all legal intelligenceAppellants filed an answer and a motion for a more definite statement in response to a counterclaim. The appellees then moved for a default judgment a…
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MICKLE, Judge.
This is an appeal from an order denying appellants’ motion to set aside an order granting appellees’ motion for default. We reverse.
It is fundamental that when a party against whom affirmative relief is sought has appeared in an action by filing or serving papers, that party shall be served with notice of the application for default as required by Florida Rule of Procedure 1.500(b). See Brooks v. Ocean Village Condominium Assoc., Inc., 656 So. 2d 275 (Fla. 3d DCA 1995); Mesones v. Jabbour, 639 So. 2d 1000 (Fla. 4th DCA 1994); Zeigler v. Huston, 626 So. 2d 1046 (Fla. 4th DCA 1993); Clark v. Perlman, 599 So. 2d 710 (Fla. 1st DCA 1992); Clearvalle, Inc. v. Cohen, 561 So. 2d 1354 (Fla. 4th DCA 1990). A violation of rule 1.500(b) warrants the setting aside of a default without consideration of whether or not a meritorious defense was presented or whether excusable neglect was established. See Cohen v. Barnett Bank of South Florida, 433 So. 2d 1354 (Fla. 3d DCA 1983); Chester, Blackburn & Poder, Inc. v. Márchese, 383 So. 2d 734 (Fla. 3d DCA 1980). In the instant case, appellants filed an answer to the original counterclaim and cross-claim and filed a motion for more definite statement following receipt of the amended counterclaim and cross-claim, thus entitling them to notice of the application for default and an opportunity to be heard thereon. Appellees’ ore tenus motion for default submitted at the summary judgment hearing, and simultaneous written motion filed therewith, did not constitute adequate notice. Because the original grant of a default in the instant case failed to meet due process requirements, we reverse the order denying the motion to set aside default, as well as the subsequent summary judgment entered thereon. See Hully v. Hully, 653 So. 2d 1138 (Fla. 2d DCA 1995) (failure to serve a notice of motion for default prior to oral motion for same, warrants setting aside of order granting default).
It is not necessary to discuss appellants’ additional grounds for reversal.
REVERSED and REMANDED.
ERVIN and LAWRENCE, JJ., concur.
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Citator
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Int'l Energy Corp. v. Darrel Hackett and Ralph Dwake, 687 So. 2d 941 (Fla. 3d DCA 1997)…en a party against whom affirmative relief is sought has appeared in the action by filing or serving any papers, no default may be entered against such party without prior notice of the application for default. Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996); Powers v. Gentile, 662 So. 2d 374, 375 (Fla. 5th DCA 1995); Brooks v. Ocean Village Condominium Ass’n, Inc., 656 So. 2d 275, 276 (Fla. 3d DCA 1995); Zeigler v. Huston, 626 So. 2d 1046, 1048 (Fla. 4th DCA 1993); Neder v. Gre…
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Hendrix v. Dep't Stores Nat'l Bank, 177 So. 3d 288 (Fla. 4th DCA 2015)…pplication for default.” Florida courts, including this court, have held that where, as here, a defendant files substantive papers in the action, rule 1.500(b)’s notice requirement also requires a hearing. See Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996) (where the appellants “filed an answer to the original counterclaim and cross-claim and filed a motion for more definite statement following receipt of the amended counterclaim and cross-claim, ... [the appellants were] enti…
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Renia T. Maranto v. Dearborn, 687 So. 2d 940 (Fla. 3d DCA 1997)…en a party against whom affirmative relief is sought has appeared in the action by filing or serving any papers, no default may be entered against such party without prior notice of the application for default. Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996); Powers v. Gentile, 662 So. 2d 374, 375 (Fla. 5th DCA 1995); Brooks v. Ocean Village Condominium Ass’n, Inc., 656 So. 2d 275, 276 (Fla. 3d DCA 1995); Zeigler v. Huston, 626 So. 2d 1046, 1048 (Fla. 4th DCA 1993); Neder v. Gre…
Previewing 3 of 9 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)
- Zeigler v. Huston, 626 So. 2d 1046 (Fla. 4th DCA 1993)
- Cohen v. Barnett Bank OF S. Fla., N.A., 433 So. 2d 1354 (Fla. 3d DCA 1983)
- Clearvalle, Inc. v. Cohen, 561 So. 2d 1354 (Fla. 4th DCA 1990)
- Hully v. Hully, 653 So. 2d 1138 (Fla. 2d DCA 1995)
- Mesones v. Jabbour, 639 So. 2d 1000 (Fla. 4th DCA 1994)
- Clark v. Perlman, 599 So. 2d 710 (Fla. 1st DCA 1992)
- Brooks v. Ocean Vill. Condo. Ass'n, Inc., 656 So. 2d 275 (Fla. 3d DCA 1995)