VACATION ESCAPE, INC., APPELLANT,
v.
MICHIGAN NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, APPELLEE
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Vacation Escape, Inc. appeals a final default judgment entered against it on Count I of a complaint. The court reversed, holding that the trial court abused its discretion by entering final default judgment without first ruling on appellant's pending motion to set aside the clerk's default.
Yes. The trial court abused its discretion by entering final default judgment without first determining the merits of the pending motion to set aside the clerk's default, as such a motion, if granted, would have affected the plaintiff's right to proceed with the action.
[1] A trial court may not enter a default judgment when an undisposed motion that could affect the plaintiff's right to proceed is pending.
[2] A trial court abuses its discretion by entering a final default judgment without first ruling on a pending motion to set aside the clerk's default.
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Join FLexlaw to unlock all legal intelligence“[W]here an undisposed motion is pending in a cause, a default judgment may not be entered, unless the determination of the motion either way would not affect the plaintiffs right to proceed with the action.”
Establishes the controlling legal standard that default judgment cannot be entered when a motion is pending that would affect plaintiff's right to proceed if granted.
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Join FLexlaw to unlock all legal intelligenceOn November 20, 1997, appellee filed a four-count complaint against appellant and its principals. Neither party responded, and a clerk's default was e…
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DELL, J.
Vacation Escape, Inc. appeals from a final default judgment, contending that the trial court erred when it failed to resolve its motion to set aside the clerk’s default before entering a final judgment as to Count I. We reverse.
On November 20, 1997, appellee filed a four-count complaint against appellant and appellant’s principals (“the Hamiltons”). Neither appellant nor the Hamiltons responded to the complaint, and on December 12, 1997, a clerk’s default was entered against them on all four counts. Thereafter, appellee amended its complaint to add Count V against the Hamiltons. On January 22, 1998, the court entered final default Judgment in favor of appellee, as to Counts II, III, and IV. Appellee then filed a motion for a final default judgment as to Count I on March 3, 1998. In response, appellant filed a motion to set aside the clerk’s default as to Count I on March 13, 1998, and scheduled a hearing for May 11, 1998.
On March 24, 1998, the trial court heard appellee’s motion for final default judgment as to Count I and summary judgment as to Count V. At the hearing, appellant asked the court to hear his pending motion to vacate the clerk’s default before considering appellee’s motion for a final default judgment as to Count I. Appellee argued that appellant failed to show excusable neglect for setting aside the default, and did not use due diligence in waiting three months to remedy the problem. Without the presentation of any evidence or hearing counsels’ arguments on appellant’s motion, the court granted appellee’s motion and entered a final default judgment as to Count I on March 30, 1998.
Appellant contends that as a matter of law, the trial court should have resolved appellant’s motion to set aside the clerk’s default prior to its entry of final default judgment as to Count I. “[W]here an undisposed motion is pending in a cause, a default judgment may not be entered, unless the determination of the motion either way would not affect the plaintiffs right to proceed with the action.” Punta Gorda Ready Mixed Concrete, Inc. v. Green Manor Constr.Co., 166 So. 2d 889, 890 (Fla.1964)(citing Cobb v. Trammell, 73 Fla. 574, 74 So. 697 (1917); Dudley v. White, 44 Fla. 264, 31 So. 830 (1902)). Obviously a favorable determination by the court on appellant’s motion to set aside the clerk’s default would have affected appel-lee’s right to proceed with its motion for final default judgment. The pending motion to set aside the clerk’s default “precluded the trial court from entering a [final default judgment] without first determining the merits of the motion.... ” See Sister Donut, Inc. v. Cameron-Brown Co., 495 So. 2d 772 (Fla. 4th DCA 1986). Furthermore, by granting appellee’s motion for final default judgment without first ruling on appellee’s motion to vacate the clerk’s default as to Count I, the trial court denied appellant’s motion without an evi- dentiary hearing. This was an abuse of discretion. See Hernandez v. National Bank of Fla., 423 So. 2d 920 (Fla. 3d DCA 1982).
Accordingly, we reverse the final default judgment as to Count I, and remand for further proceedings consistent herewith.
REVERSED and REMANDED.
POLEN and STEVENSON, JJ., concur.
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Lakeview Auto Sales v. Lott, 753 So. 2d 723 (Fla. 2d DCA 2000)…l court never ruled on the Weeks’ motions to set aside the default. A trial court may not enter a default judgment without first determining the merits of any pending motion to set aside the default. See Vacation Escape, Inc. v. Michigan Nat’l Bank, 735 So. 2d 528, 529 (Fla. 4th DCA 1999). In this case, the trial court stated that it would consider the May 28 letter as a motion to set aside the June 18 default.3 The Weeks also filed a pro se motion to set aside the June 18 default on June 9, 1998. The trial c…
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Goodman v. Joffe, 57 So. 3d 1001 (Fla. 4th DCA 2011)…judgment. Goodman contends that, as a matter of law, the trial court should have ruled on her pending motion to vacate the default entered against her before entering a default final judgment. We agree. See Vacation Escape, Inc. v. Mich. Nat’l Bank, 735 So. 2d 528, 529 (Fla. 4th DCA 1999) (reversing entry of a final default judgment where the trial court failed to hear the motion to vacate the clerk’s default); see also Punta Gorda Ready Mixed Concrete, Inc. v. Green Manor Constr. Co., 166 So. 2d 889, 890 (Fl…
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Gedalya Blatter v. D.N. Suyte Inc. (Fla. 4th DCA 2023)
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
- Dudley v. White, 44 Fla. 264 (Fla. 1902)
- Cobb v. Park Trammell, 73 Fla. 574 (Fla. 1917)
- Punta Gorda Ready Mixed Concrete, Inc. v. Green Manor Constr. Co., Inc., 166 So. 2d 889 (Fla. 1964)
- Sister Donut, Inc. v. Cameron-Brown Co., 495 So. 2d 772 (Fla. 4th DCA 1986)
- Clemente Hernandez v. Nat'l Bank OF Fla., 423 So. 2d 920 (Fla. 3d DCA 1982)
- Schaeffer v. State, 423 So. 2d 920 (Fla. 4th DCA 1982)