DEPARTMENT OF TRANSPORTATION, STATE OF FLORIDA, APPELLANT,
v.
ELIZABETH M. MASTRANGELO, APPELLEE
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The court reversed a default judgment against the Department of Transportation because the defendant was not served with notice of the default application as required by Florida Rule of Civil Procedure 1.500(b), despite having previously filed papers in the action.
A default judgment is improper when the defendant has appeared by filing papers in the action but was not served with notice of the application for default as required by Florida Rule of Civil Procedure 1.500(b).
[1] A default judgment is improper when the defendant has appeared by filing papers in the action but was not served with notice of the application for default as required by…
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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 any action by filing or serving 'papers,' that party shall be served with notice of the application for default as required by Florida Rule of Civil Procedure 1.500(b).”
Court's statement of the controlling legal principle requiring service of default notice on appearing defendants.
The Department of Transportation filed papers and a motion to dismiss in the action, but was not served with notice of Mastrangelo's application for d…
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PER CURIAM.
The order of default entered against the Department of Transportation (DOT) is reversed because “[i]t is fundamental that when a party against whom affirma tive relief is sought has appeared in' any action by filing or serving ‘papers,’ that party shall be served with notice of the application for default as required by Florida Rule of Civil Procedure 1.500(b).” Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996). International Energy Corp. v. Hackett, 687 So. 2d 941 (Fla. 3d DCA Feb. 12, 1997); Maranto v. Dearborn, 687 So. 2d 940 (Fla. 3d DCA Feb. 12, 1997); Clark v. Perlman, 599 So. 2d 710 (Fla. 1st DCA 1992). In the instant case, the defendant, DOT, had previously filed papers in this action but was not served with notice of Mastrangelo’s application for default as required by Florida Rule of Civil Procedure 1.500(b). Cf. Fierro v. Lewis, 388 So. 2d 1361 (Fla. 5th DCA 1980) (while rule 1.500(b) requires service of the notice of default, it does not require a noticed hearing for the entry of a default order against a party who fails to plead or otherwise defend). We note, additionally, that DOT filed a response in the form of a motion to dismiss before Mastran-gelo presented her motion for default. See Carillon Corp. v. Devick, 554 So. 2d 630 (Fla. 4th DCA 1989) (default judgment improper where party filed answer before hearing on motion for default).
The default order entered against DOT is reversed.
REVERSED.
PETERSON, C.J., and THOMPSON and ANTOON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Molina v. Watkins, 824 So. 2d 959 (Fla. 3d DCA 2002)…ction, that “party shall be served with notice of the application for default.” See State, Dep’t. of Rev. v. Thurmond, 721 So. 2d 827 (Fla. 3d DCA 1998) (judgment entered without notice to a party is void abinitio); Dep’t. of Transp. v. Mastrangelo, 691 So. 2d 643 (Fla. 5th DCA 1997) (order of default improper where defendant, who had filed papers in action, had not been served with notice of default). See also International Energy Corp. v. Hackett, 687 So. 2d 941, 943 (Fla. 3d DCA 1997) quoting Clearvalle, I…
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Green Solutions Int'l, Inc. v. Gilligan, 807 So. 2d 693 (Fla. 5th DCA 2002)…t appellant, GSI, was being represented by counsel who had expressed an intent to defend on the merits and therefore, Rule 1.500(b) required that Gilligan give proper notice of the motion for default, see Department of Transportation v. Mastrangelo, 691 So. 2d 643 (Fla. 5th DCA 1997), and the failure to do so is reversible error. We find that the July 13, 2000 letter from attorney Fullerton, on behalf of GSI, constituted a “paper” in accordance with Rule 1.500(b) which had been served upon appellee before ap…
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Bogdanoff v. Broken Sound Club, Inc (15th Cir. Ct. App. Div. 2008)…d with notice of the application for default." Fla. R. Civ. P. 1.500(b); see also State, Dep't. of Rev. v. Thurmond, 721 So. 2d 827 (Fla. 3d DCA 1998) (judgment entered without notice to a party is void ab initio); Dep't. of Transp. v. Mastrangelo, 691 So. 2d 643 (Fla. 5th DCA 1997) (order of default improper where defendant, who had filed papers in action, had not been served with notice of default). The term "paper" is construed liberally and includes any written communication that informs the plaintiff…
Authorities Cited
- Mira Alfredo Fierro v. Lewis, 388 So. 2d 1361 (Fla. 5th DCA 1980)
- Carillon Corp. v. Seymour Devick and Florence Devick, 554 So. 2d 630 (Fla. 4th DCA 1989)
- Int'l Energy Corp. v. Darrel Hackett and Ralph Dwake, 687 So. 2d 941 (Fla. 3d DCA 1997)
- Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170 (Fla. 1st DCA 1996)
- Renia T. Maranto v. Dearborn, 687 So. 2d 940 (Fla. 3d DCA 1997)
- Clark v. Perlman, 599 So. 2d 710 (Fla. 1st DCA 1992)