Abbey Adams Logo

Defending Liability, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Are Available to Practice In Illinois
  • Practices
  • Blog
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Robert P. Byelick
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Elisabeth K. Eubanks
  • Links
  • Contact Us

January 28, 2021 by Jennifer Kennedy

Civil procedure — Default — Vacation — Trial court abused discretion in denying motion to vacate clerk’s default where, prior to entry of default, there was correspondence between counsel for parties that indicated that defendant was represented by counsel and intended to defend suit

46 Fla. L. Weekly D232a

ACE FUNDING SOURCE, LLC, Appellant, v. A1 TRANSPORTATION NETWORK, INC., Appellee. 3rd District. Case No. 3D20-1292. L.T. Case No. 19-24688. Opinion filed January 27, 2021. An Appeal from non-final orders from the Circuit Court for Miami-Dade County, Barbara Areces, Judge. Counsel: The Law Offices of Steven Zakharyayev and Steven Zakharyayev (New York, NY), for appellant. Sheldon J. Burnett, for appellee.

(Before FERNANDEZ, LOGUE, and GORDO, JJ.)

(FERNANDEZ, J.) Appellant Ace Funding Source, LLC (“Ace”) appeals the trial court’s non-final order denying Ace’s motion to vacate the clerk’s default and the default final judgment entered in favor of appellee A1 Transportation Network, Inc. (“A1”). Upon review of the record, we find that the trial court abused its discretion in denying Ace’s motion to vacate the clerk’s default and reverse with instructions to vacate the clerk’s default and the default final judgment.

This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). “An order denying a motion to vacate a clerk’s default is reviewed under an abuse of discretion standard.” Makes & Models Magazine, Inc. v. Web Offset Printing Co., Inc., 13 So. 3d 178, 181 (Fla. 2d DCA 2009).

In the motion to vacate and in the supporting affidavit of Ace’s registered agent, Ace alleged that before entry of the clerk’s default, the attorneys from both sides discussed defendant’s representation by counsel and its intent to defend. A1 did not file a response to the motion to vacate, and there is no transcript of the hearing. Therefore, Ace’s statements went unchallenged. The trial court ultimately denied Ace’s motion to vacate the clerk’s default because Ace had been served with the complaint, and Ace failed to establish excusable neglect, due diligence, and a meritorious defense.1

“Florida Rule of Civil Procedure 1.500, which allows entry of a clerk’s default when a party fails to file or serve any paper in an action, should be liberally construed in favor of deciding cases on the merits.” Id. Rule 1.500 provides that a clerk’s default is only appropriate if the defendant “has failed to file or serve any paper in the action.” Fla. R. Civ. P. 1.500(a). As this Court recently instructed, “For purposes of construing the right to enter a default under rule 1.500(a), the term ‘paper’ is construed liberally and includes any written communication that informs the plaintiff of the defendant’s intent to contest the claim.” Contreras v. Stambul, LLC, 45 Fla. L. Weekly D2032 at *1 (Fla. 3d DCA Aug. 26, 2020) (quoting Becker v. Re/Max Horizons Realty, Inc., 819 So. 2d 887, 890 (Fla. 1st DCA 2002)); see also Makes & Models Magazine, Inc., 13 So. 3d at 181 (“A default that does not comply with this requirement ‘must be vacated without regard to whether the defendant can establish a meritorious defense or whether the defendant can demonstrate inadvertence or excusable neglect.’ ” (quoting U.S. Bank Nat’l Ass’n v. Lloyd, 981 So.2d 633, 640 (Fla. 2d DCA 2008)).

Correspondence between the parties’ attorneys prior to entry of a clerk’s default falls squarely within the definition of “paper,” as defined by this Court. Because A1 was on notice that Ace was represented by counsel and intended to defend against the dispute, we find that “the clerical default was improvidently entered and the ensuing final judgment cannot stand.” Contreras, 45 Fla. L. Weekly D2032 at *2. Accordingly, we reverse and remand with instructions to vacate the clerk’s default and the default final judgment.

Reversed and remanded with instructions.

__________________

1We acknowledge that the trial judge recognized that her original order denying the motion to vacate should be revisited due to an intervening opinion that was published after her order issued, but by that time she had lost jurisdiction due to this present appeal.* * *

Filed Under: Uncategorized

Primary Sidebar

Recent Posts

  • Insurance — Homeowners — All-risk policy — Coverage — Cracking damage to home caused by blasting vibrations from nearby rock quarry — Exclusions — Earth or soil movement — Wear and tear, marking, deterioration, settling, shrinking, bulging, or expansion — Concurrent causes — Trial court did not err in denying insurer’s motion for directed verdict based on policy’s exclusion of coverage for earth sinking, rising, or shifting or soil movement resulting from blasting — Insurer’s position was based upon mischaracterization of testimony by insureds’ expert, who was steadfast in his opinion that none of the damage to home resulted from soil or earth movement, but was instead the result of shock waves from blasting that caused the house to shake — Based upon competing expert testimony, jury could have reasonably concluded that it was shock waves, not soil or earth movement, that caused damage — Jury instructions — Covered and excluded perils — Concurrent cause doctrine — Trial court did not err by instructing jury that land shock waves from blasting in combination with wear and tear, marring, deterioration, settling, shrinking, bulging, or expansion was not excluded under policy — Although policy’s earth movement exclusion contained an explicit anti-concurrent cause provision, this provision would have come into play only if jury had first determined that one of the causes of damage was earth movement — Judgment in favor of insureds affirmed
  • Insurance — Homeowners — Discovery — Work product — Claims files — Appeals — Certiorari — Trial court did not depart from essential requirements of the law by compelling insurer to produce documents from its claims and underwriting files — Documents in claims and underwriting files are not automatically work product — Insurer’s assertion of work-product privilege was overly broad, and insurer did not argue or prove that the requested documents were prepared in anticipation of litigation
  • Wrongful death — Medical malpractice — Vicarious liability — Punitive damages — Amendment of complaint — Allegation that defendant, through its president, committed acts of intentional misconduct or gross negligence by assigning a nurse practitioner to provide after-hours care to a patient with highly complex problems that were beyond nurse practitioner’s permissible scope of practice — Trial court erred by granting plaintiff’s motion to amend complaint to assert claim for punitive damages — Plaintiff failed to demonstrate a reasonable basis for award of punitive damages based on intentional conduct where evidence was insufficient to show that defendant’s president either knew or otherwise intended for nurse practitioner to independently order medical treatment for patient outside the scope of nurse practitioner’s practice without consulting president — Furthermore, there was insufficient evidence demonstrating that defendant’s president condoned or ratified nurse practitioner’s independent treatment with actual knowledge of a high probability that doing so would result in additional harm or death to patient — Plaintiff failed to demonstrate a reasonable basis for award of punitive damages based on gross negligence where facts of case did not show that defendant, through its president or nurse practitioner, evinced a reckless or conscious disregard of or indifference to human life
  • Torts — Negligent hiring — Punitive damages — Trial court departed from essential requirements of law in granting motion to amend complaint to add claim for punitive damages against employer of driver who crashed company car into plaintiff’s vehicle — Proffered evidence was not sufficient to establish reasonable basis for finding that defendant was grossly negligent when it allegedly hired employee without conducting adequate pre-employment screening, obtaining a driving and criminal history, and confirming that employee held valid driver’s license — Proffered evidence was either not directly related to allegation that employer was grossly negligent or sufficiently refuted by defendant
  • Torts — Negligent hiring — Punitive damages — Trial court departed from essential requirements of law in granting motion to amend complaint to add claim for punitive damages against employer of driver who crashed company car into plaintiff’s vehicle — Proffered evidence was not sufficient to establish reasonable basis for finding that defendant was grossly negligent when it allegedly hired employee without conducting adequate pre-employment screening, obtaining a driving and criminal history, and confirming that employee held valid driver’s license — Proffered evidence was either not directly related to allegation that employer was grossly negligent or sufficiently refuted by defendant

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2023 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Employment Claims and Appeals Since 1982