RONALD M. GOULD, APPELLANT,
v.
HENRY C. RUZAKOWSKI, APPELLEE
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The court held that a default judgment was improperly entered because the tenant, who had filed a motion to transfer, was not served with notice of the application for default.
A landlord obtained a default judgment for eviction and unpaid rent against a tenant. The tenant had previously filed a motion to transfer the case to…
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PER CURIAM.
Defendant tenant seeks review of a final default judgment for his removal from the leased premises and a $2,349.98 landlord’s lien for rent past due.
Plaintiff landlord, Henry Ruzakowski, filed a complaint for removal of tenant and other relief in county court. Defendant, Ronald Gould, filed a motion to transfer the cause to circuit court which was granted.
Thereafter plaintiff moved, pursuant to RCP 1.500(b), Florida Statutes Chapter 83 and § 51.011, Fla.Stat., for the failure of the defendant to file any pleadings for entry of a default judgment for immediate possession of the leased premises, a money judgment for rent due of $2,349.98 plus costs, and an injunction enjoining defendant from removing his personal property from the leased premises until such time as he pays the past due rent. The court entered an order granting plaintiff’s motion for default judgment and final judgment granting the relief sought above.
On appeal defendant contends the trial court erred in entering the order and final default judgment when the record clearly showed that the appellant, prior thereto, filed and served papers in the action, but was not served notice of the application for default. We agree.
RCP 1.500(b) clearly provides that the party against whom a motion for default judgment has been filed must be served with a notice if such party has filed or served any paper in the action. The record reflects that although defendant filed a motion to transfer, he was not served with notice of the application for default or of any hearing thereon. Hence, we conclude the trial judge erred in entering his order granting default and final judgment. See Freedman v. Freedman, Fla.App. 1970, 235 So. 2d 544.
The order and final judgment are reversed, and the cause is remanded to the trial court for further proceedings not inconsistent herewith.
It is so ordered.
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Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)…remanded, with directions to vacate the order of default, and for further proceedings not inconsistent herewith.4 Reversed and remanded. . See Kiaer v. Friendship, Inc., 376 So. 2d 919, 922 (Fla.3d DCA 1979), and cases cited; Gould v. Ruzakowski, 322 So. 2d 567 (Fla.3d DCA 1975); Freedman v. Freedman, 235 So. 2d 544 (Fla.3d DCA 1970). . Our conclusion that the answer was filed before the default order was “entered” renders it unnecessary to decide whether the provision in Rule 1.500(c) that one may “plead…
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EGF Tampa Assocs. v. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988)…tice requirements of Fla.RXiv.P. 1.500(a), (b). So long as a paper is served before the default is actually entered, the rules required notice of the application. See Kiaer v. Friendship, Inc., 376 So. 2d 919 (Fla. 3d DCA 1979); Gould v. Ruzakowski, 322 So. 2d 567 (Fla. 3d DCA 1975). If, after receiving notice, the defendant then “plead or otherwise defends at any time" before default, it may not thereafter be entered. Fla.RXiv.P. 1.500(c); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734 (Fla. 3d…
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Clark v. Perlman, 599 So. 2d 710 (Fla. 1st DCA 1992)…Board of Regents, Univ. of Florida v. Hardin, 393 So. 2d 1134 (Fla. 1st DCA 1981); Carder v. Pelican Cove West Homeowners Assoc., Inc., 595 So. 2d 174 (Fla. 5th DCA 1992); Graves v. Giordano, 590 So. 2d 1113 (Fla. 4th DCA 1991); Gould v. Ruzakowski, 322 So. 2d 567 (Fla. 3d DCA 1975). In the instant case, defendant/appellant filed a pro se answer and motion to dismiss directed to plaintiff/appellee’s original complaint. In so doing, she filed a “paper in the action,” within the contemplation of rule 1.500(b),…
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- Freedman v. Freedman, 235 So. 2d 544 (Fla. 3d DCA 1970)