VALERIE K. FREEDMAN, APPELLANT,
v.
EVELYN PATRICIA FREEDMAN, JUDITH KRAMER, EUGENE KRAMER, ROBERTA MILLER AND EARL MILLER, APPELLEES
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The court held that a default entered after a defendant filed an answer, but before the default was officially entered, was improper.
The plaintiff filed a declaratory judgment action. The defendant filed a motion challenging service, and later filed an answer. The trial court entere…
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These appeals arose from an action for declaratory judgment filed by the appel-lee Evelyn Patricia Freedman as plaintiff, against the appellant Valerie K. Freedman, and others. References herein to appellee are to the plaintiff Evelyn Patricia Freedman.
The orders appealed from were an order granting default against the appellant Valerie K. Freedman for failure to file a timely answer, and an order denying her motion to vacate the default.
Prior to the time within which the appellant-defendant was required to file her defensive pleading, she had filed another pleading in the cause, a motion challenging (unsuccessfully) validity of substituted service. By virtue of such *545prior pleading the appellant-defendant was entitled to notice before default could be entered against her for failure to timely file a defensive pleading. Rule 1.500(b) FRCP, 31 F.S.A. After plaintiff moved for default, but prior to hearing or action thereon by the court, the appellant-defendant filed her answer. Later the trial court entered the default order, and denied the subsequent motion to vacate.
Rule 1.500(c) FRCP provides: “A party may plead or otherwise defend at any time before default is entered.”
In this case, the default was entered by the court against the appealing defendant after her answer had been filed, in contravention of Rule 1.500(c) FRCP. Accordingly, the orders appealed from are reversed, and the cause is remanded to the trial court for further proceeding not inconsistent herewith.
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Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)…f Christ, 211 Kan. 705, 508 P. 2d 1227 (1973); Polis v. Alford, 267 S.W. 2d 918 (Tex.Civ.App.1954). In this case, it is undisputed that the answer was filed before the order and therefore before the default was “entered.” As in Freedman v. Freedman, 235 So. 2d 544, 545 (Fla.3d DCA 1970), therefore, “[i]n this case, the default was entered by the court against the appealing defendant after her answer had been filed, in contravention of Rule 1.500(c) FRCP.” 2 For these reasons, the final judgment below must be…1 / 2
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Reicheinbach v. Se. Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985)…it, Southeast Bank has given a thirty day extention [sic] to Mr. Reichenbach before continuing with the foreclosure. .See Fla.R.Civ.P. 1.500(c); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980); Freedman v. Freedman, 235 So. 2d 544 (Fla. 3d DCA 1970).…
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Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980)…not necessary for a party seeking to set aside a default entered by the clerk contrary to Rule 1.500(a) to assert excusable neglect or the existence of a meritorious defense. Mo-Con Properties, Inc., 289 So. 2d at 745. See also Freedman v. Freedman, 235 So. 2d 544 (Fla. 3d DCA 1970). Even if the default had been properly entered against Turner he was entitled to receive notice of the order setting a hearing on damages prior to entry of a final judgment because the claim involved unliquidat-ed damages. B/G Am…
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