DR. ANTONIO FERNANDEZ DURAN, ETC., ET AL., PETITIONERS,
v.
JOHN STALDER, INC., RESPONDENT
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The circuit court erred in summarily affirming the denial of a motion to vacate a default judgment, as the notice of appeal, though defective, clearly indicated the intent to challenge the default and judgment.
[1] A clerk may enter a default against a party who fails to file or serve any paper in an action, provided that affirmative relief is sought against that party.
[2] Documents filed or served by out-of-state counsel who have not received permission to appear in a case qualify as "paper" within the meaning of the rule governing clerk-e…
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Join FLexlaw to unlock all legal intelligencePetitioners sought review of a circuit court order that affirmed a county court's denial of a motion to vacate a default judgment. The default was ent…
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COBB, Judge.
Petitioners (“Duran”) seek certiorari review of an order entered by the circuit court in its appellate capacity in favor of respondent, John Stalder, Inc. (“Stalder”). Stalder filed a complaint against Duran in county court seeking to recover a real estate commission. Duran filed an answer, raised affirmative defenses and shortly thereafter moved to strike the complaint. Eventually, a third amended complaint was filed, and Duran moved for an extension of time to file an answer. On September 25, 1995, Stalder stipulated to granting an extension until November 13,1995.
On November 14, 1995, Stalder, without notice to Duran, filed a motion asking the clerk to enter a default. See generally, Fla. R. Civ. P. 1.500(a). The clerk entered a default against Duran on the same date. On December 4, 1995, the county court entered final judgment based on the default.
Duran filed a post-judgment motion to vacate default, Fla. R. Civ. P. 1.540(b), which was denied by the county court on January 23, 1996. Later, Duran moved the county court to set aside the subsequent sheriffs sale which occurred on February 13, 1996, pursuant to a writ of execution issued after the final judgment. On February 15, 1996, the county court denied the motion to set aside the sheriffs sale. On February 19, 1996, Duran filed a notice of appeal from the order denying the motion to set aside the sheriffs sale. The circuit court summarily affirmed, holding that Duran should have appealed the final judgment.
The clerk’s authority to enter a default is set forth in Florida Rule of Civil Procedure 1.500(a). It provides:
When a party against whom affirmative relief is sought has failed to file or serve any .paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper. In the instant case, the default entered by the clerk was improper, as Duran had filed pleadings and a motion to extend time to answer the third amended complaint. See Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980).
Stalder points out that all of the' pleadings and motions filed on behalf of Duran prior to final judgment were submitted by an out-of-staté attorney who had not received permission from the 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. 2d 611 (Fla. 3d DCA 1985); NCR Corp. v. Cannon & Wolfe Lumber Co., Inc., 501 So. 2d 157 (Fla. 1st DCA 1987).
The circuit court held that Duran should have appealed the final judgment instead of the order denying the motion to set aside the sheriffs sale.
However, Duran filed a motion to vacate the default judgment prior to the sheriffs sale. An order denying a Rule 1.540(b) motion for relief from judgment is appealable under Florida Rule of Appellate Procedure 9.130(a)(5).
The order denying the motion to vacate the default judgment was entered on January 23, 1996. The notice of appeal was filed within 30 days of that order, on February 19, 1996. Although the notice of appeal designated the wrong order to be reviewed, it was clear from the initial brief, as acknowledged by the circuit court, that the clerk’s default and final judgment were being challenged, and Duran was actually appealing the order denying the motion to vacate default judgment. Because the defective notice of appeal did not affect the circuit court’s jurisdiction, the circuit court misapplied the law in issuing a summary affirmance. In the absence of serious prejudice to the appellee, the appeal should have been disposed of on the merits. See Eggers v. Narron, 288 So. 2d 72 (Fla.1970); State ex ret. Poe v. Allen, 196 So. 2d 745 (Fla.1967); Jones v. State, 423 So. 2d 520 (Fla. 5th DCA1982).
See also Fla. R.App. P. 9.040(d).
The circuit court’s appellate opinion did not even discuss whether Stalder was prejudiced by the defective notice of appeal. We therefore grant the petition, quash the circuit court’s decision, and remand to the circuit court for further proceedings consistent with this opinion.
PETITION GRANTED; DECISION QUASHED; AND REMANDED.
W. SHARP and GOSHORN, JJ., concur.
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Bess v. Eagle Cap., Inc., 704 So. 2d 621 (Fla. 4th DCA 1997)…tion for clarification, and [*623] note that Florida law permits a litigant to seek to set aside a sheriff’s sale by either a motion filed in the original proceeding or by the institution of a separate action. See, e.g., Duran v. John Stalder, Inc., 686 So. 2d 627 (Fla. 5th DCA 1996)(appeal from trial court’s order denying motion to set aside sheriffs sale); Demars v. Village of Sandalwood Lakes Homeowners Ass’n, 625 So. 2d 1219 (Fla. 4th DCA 1993)(appeal from trial court’s denial of motion to set aside judgm…
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Chrysler Corp. v. Long, 769 So. 2d 466 (Fla. 5th DCA 2000)…clear from the record that a party is appealing a final order, but the notice of appeal is defective and designates the wrong order, the appeal should not be dismissed unless there is prejudice to the opposing party. See Duran v. John Stalder, Inc., 686 So. 2d 627 (Fla. 5th DCA 1996). In the instant case, at the time the notice of appeal was prepared, the jury had already ruled in Chrysler’s favor, and the order on Chrysler’s motion for attorney fees had been denied. The only remaining judicial labor was for…
Authorities Cited
- Reicheinbach v. Se. Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985)
- State of Fla. ex rel. Alfred Gordon POE & Doris v. Poe, 196 So. 2d 745 (Fla. 1967)
- Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980)
- EGF Tampa Assocs. v. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988)
- Jones v. State, 423 So. 2d 520 (Fla. 5th DCA 1982)
- NCR Corp. v. Cannon & Wolfe Lumber Co., Inc., 501 So. 2d 157 (Fla. 1st DCA 1987)
- Zephyr Aviation Servs., Inc. v. Amerijet Int'l, Inc., 631 So. 2d 371 (Fla. 4th DCA 1994)