MO-CON PROPERTIES, INC., APPELLANT,
v.
AMERICAN MECHANICAL, INC., A FLORIDA CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida District Court of Appeal reversed a foreclosure judgment and default entered by the clerk, holding that a default judgment was erroneously entered when the defendant had timely served a motion before the clerk's default entry, and that such erroneously entered defaults must be vacated upon timely application regardless of whether the defendant asserts a meritorious defense.
The court held that when a party has served any paper in the action, a default entered by the clerk under Rule 1.500(a) is erroneous and must be set aside upon timely application by that party. The court further held that when a default is erroneously entered rather than properly entered due to a defendant's non-compliance with the rules, the defendant need not assert a meritorious defense to obtain relief.
[1] A default entered by the clerk under Rule 1.500(a), RCP is erroneous when a party has served any paper in the action.
[2] A final judgment of foreclosure entered based upon an erroneously entered default judgment is likewise erroneous.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The clerk is authorized to enter a default under Rule 1.500(a), RCP only when a party against whom affirmative relief is sought has failed to file or serve any paper in the action. At the time the default was entered on October 30th, appellant had served a paper, and thus the entry of the default by the clerk was erroneous.”
Establishes the legal standard for when a clerk may enter default and applies it to find the default here was erroneous
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMO-Con Properties was served with process on October 9, 1973. On October 29th, its attorneys served a motion on opposing counsel by mail and sent the …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Vacating Default Judgment cases and more on FLexlaw
OWEN, Chief Judge.
A final judgment of foreclosure was entered by the court after a default judgment had been entered by the clerk under Rule 1.500(a), RCP, 31 F.S.A. Defendant-appellant's timely motion to vacate the de fault and final judgment was denied, resulting in this appeal.
Process was served on appellant’s resident agent on October 9, 1973. On October 29th, appellant’s attorneys served upon appellee’s counsel by mail copy of a motion, mailing the original to the clerk of the court for filing. On the following day the original of this motion was received in the clerk’s office and filed at 3:17 P.M. Unfortunately, at 11:27 A.M. that day, plaintiff had filed a motion for default against appellant for its “ . . . failure to file or serve any responsive pleading within the time permitted by law,” and the clerk had entered a default judgment at that time. By 1:00 P.M. that day, a final judgment had been entered and filed in the clerk’s office.
The clerk is authorized to enter a default under Rule 1.500(a), RCP only when a party against whom affirmative relief is sought has failed to file or serve any paper in the action. At the time the default was entered on October 30th, appellant had served a paper, and thus the entry of the default by the clerk was erroneous. Entry of the final judgment of foreclosure based upon such default judgment was likewise erroneous. When the matter was called to the court’s attention by motion to vacate filed less than a week later the court erred by not vacating the default and final judgment.
Appellant’s motion to vacate the default and final judgment did not assert that it had a meritorious defense to the suit and appellee contends, upon the authority of Empire Electric Company v. R. J. Hunt Construction Company, Inc., Fla.App.1972, 264 So. 2d 114, and Winter Park Arms, Inc. v. Akerman, Fla.App.1967, 199 So. 2d 107, that this failure was fatal to the motion. The cited cases are inapposite here because the default was not entered due to the defendant’s failure to comply with the rules, but was entered erroneously by the clerk at a time when the defendant had, in fact, served a paper in the cause. The distinction is thus made between on the one hand asking the court to exercise its sound judicial discretion to set aside a default judgment properly entered, and on the other hand seeking a court order to set aside a default judgment erroneously entered.
As a caveat, we note that our decision here does not reach the question of whether the substantive nature of the motion which appellant filed was sufficient to have prevented the court from entering a default after notice, pursuant to Rule 1.-500(b), RCP. We simply hold that when a party has served any paper in the action, a default entered by the clerk under Rule 1.-500(a), RCP is erroneous and upon timely application by such party, the default and any final judgment consequent thereon should be set aside.
The judgment is reversed and this cause remanded for further proceedings consistent herewith.
Reversed and remanded.
CROSS and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
-
Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)…that one may “plead” at any time requires that the pleading be actually filed — as well as “served” — before the default is entered, but see Fla.R.Civ.P. 1.080(d), compare Fla.R. Civ.P. 1.500(a); Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So. 2d 744 (Fla.4th DCA 1974). Nor need we determine whether, if it does, the court erred in declining to permit the answer to be filed before him as authorized by Fla.R.Civ.P. 1.080(e). . Since the order of default was erroneous, the final default judgment m…
-
Reicheinbach v. Se. Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985)…upport of his motion to vacate; nevertheless, the erroneous entry of the default entitles him to relief. Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734, 735 n. 3 (Fla. 3d DCA 1980); Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So. 2d 744 (Fla. 4th DCA 1974). The Order on Defendant’s Motion to Vacate Default Judgment is reversed and the cause is remanded for further proceedings. . The deficiency has apparently not been reduced to judgment. . The letter stated: As per our conversa…
-
Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980)…nger applicable. The default entered by the clerk after the defendant had served and filed pleadings in the case was erroneous, and the court erred by not vacating the default and final judgment. Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So. 2d 744 (Fla. 4th DCA 1974). The plaintiffs argue that Turner was entitled to no relief from the default and the final judgment as well, because he failed to allege and establish “excusable neglect” and the existence of a “meritorious defense.” Empire Elec…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Winter Park Arms, Inc. v. Akerman, 199 So. 2d 107 (Fla. 4th DCA 1967)
- Empire Elec. Co. v. R. J. Hunt Constr. Co., Inc., 264 So. 2d 114 (Fla. 4th DCA 1972)