PAUL DEROSA, VITO DEROSA, AND NICOLETTA DEROSA, APPELLANTS,
v.
DOMINICK PUGLIESE, APPELLEE
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The clerk's default was void ab initio because the appellants served their answer and affirmative defenses before the clerk entered the default.
Appellee filed a motion for clerk's default. Appellants served their answer and affirmative defenses by mail. The clerk entered the default after the …
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PER CURIAM.
Paul DeRosa, Vito DeRosa and Nicolette DeRosa appeal the trial court’s Final Judgment of Default entered in favor of Dominick Pugliese. We reverse and remand.
Appellee filed his motion for entry of clerk’s default on August 28, 1998. Appellants served their “Answer with Affirmative Defenses” by mail on September 11, 1998. The Clerk did not enter default until September 15,1998.
Florida Rule of Civil Procedure 1.491 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. (Emphasis added.) However, Florida Rule of Civil Procedure 1.500(c) provides that “[a ] party may plead or otherwise defend at any time prior to an entry of default.”
We hold that the clerk’s default was void ab initio because appellants served their answer and affirmative defenses before the clerk entered its default. Therefore, appellants were not required to raise the argument in the trial court that the default was void in order to preserve that point for appellate review. See Sunniland Bank v. Mosley, 659 So. 2d 1184 (Fla. 4th DCA 1995); Clement v. Marcus, Stowell & Beye, Inc., 516 So. 2d 1137 (Fla. 4th DCA 1987); Gibraltar Serv. Corp. v. Lone and Assoc., 488 So. 2d 582 (Fla. 4th DCA 1986); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980). Accordingly, we reverse and remand with directions to the trial court to vacate the default and the final judgment entered thereon.
REVERSED and REMANDED.
DELL, STONE, and KLEIN, JJ., concur.
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Becker v. RE/MAX Horizons Realty, Inc., 819 So. 2d 887 (Fla. 1st DCA 2002)…of the defendant’s intent to contest the claim. See generally, Philip J. Padovano, Florida Civil Practice, § 9.2 (2001 ed.). Thus, the clerk’s default was void ab initio and the trial court was required to vacate the default. See DeRosa v. Pugliese, 782 So. 2d 1011 (Fla. 4th DCA 2001). AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. ERVIN AND BARFIELD, JJ., CONCUR.…
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BOB White's CAP, Inc. v. Ocean Foods, Inc., 790 So. 2d 1288 (Fla. 4th DCA 2001)…o the complaint was served the same day the clerk entered the defaults. We find that Gibraltar Serv. Corp. v. Lone and Assocs., Inc., 488 So. 2d 582 (Fla. 4th DCA 1986), controls and the default should have been vacated. See also DeRosa v. Pugliese, 782 So. 2d 1011 (Fla. 4th DCA 2001); Sunniland Bank v. Mosley, 659 So. 2d 1184 (Fla. 4th DCA 1995). We, therefore, reverse and remand for the trial court to vacate the default and [*1289] the final judgment entered thereon and for further proceedings. REVERSED an…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)
- Gibraltar Serv. Corp. v. Lone & Assocs., Inc., 488 So. 2d 582 (Fla. 4th DCA 1986)
- Clement v. Marcus, 516 So. 2d 1137 (Fla. 4th DCA 1987)
- Sunniland Bank v. Mosley, 659 So. 2d 1184 (Fla. 4th DCA 1995)
- McGLAMRY v. Voytek, 659 So. 2d 1184 (Fla. 4th DCA 1995)