720 South Howard, LLC v. Gina Investments, LLC ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
720 SOUTH HOWARD, LLC, and )
CHRISTOPHER B. SCOTT, )
)
Appellants, )
)
v. ) Case No. 2D15-3897
)
GINA INVESTMENTS, LLC, and )
TIMOTHY R. MADDEN, )
)
Appellees. )
___________________________________)
Opinion filed October 14, 2016.
Appeal from the Circuit Court for
Hillsborough County; Rex M. Barbas and
Christopher C. Nash, Judges.
W. Bart Meacham, Tampa, for Appellants.
Elizabeth L. Hapner, Tampa, for Appellee
Gina Investments, LLC.
No appearance for Appellee Timothy R.
Madden.
SILBERMAN, Judge.
720 South Howard, LLC, and Christopher B. Scott (the Defendants) 1
appeal a default final judgment in the amount of $76,945 in this action on a promissory
note in count one of the complaint (the only remaining count) in favor of Gina
Investments, LLC. Because the trial court should have set aside the clerk's default
upon which the default final judgment is based, we reverse and remand for further
proceedings.
Gina Investments filed its complaint on the promissory note against the
Defendants on December 16, 2013. On February 6, 2014, Gina filed a motion for
clerk's default against the Defendants for failure to respond to the complaint within
twenty days of service. See Fla. R. Civ. P. 1.500(a). On February 12, 2014, the
Defendants filed a motion for extension of time to respond to the complaint. On that
same day, after the Defendants' motion for extension of time had been filed and
docketed, the clerk entered a default against the Defendants. Shortly thereafter, the
Defendants filed a motion to vacate the default. The trial court subsequently denied the
Defendants' motion with respect to count one and entered the default final judgment.
The rule on entry of a clerk's default provides that "[w]hen 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." Fla. R. Civ. P. 1.500(a). The rule also provides that "[a] party may
plead or otherwise defend at any time before default is entered." Fla. R. Civ. P.
1Timothy
R. Madden was also named as a defendant, but Gina
Investments never served process on him.
1.500(c). Here, the clerk's office did not timely act on the motion for clerk's default that
Gina Investments filed on February 6, 2014. When the clerk's office entered the default
on February 12, 2014, the Defendants had already filed a paper in the action. Thus, the
clerk's office erroneously entered the default, and the trial court should have granted the
Defendants' motion to vacate the default. See Beztak Constr. Co. v. Kesling Carpets,
Inc., 596 So. 2d 1297, 1297 (Fla. 2d DCA 1992); Stuart-Findlay v. Bank of Am., Nat'l
Ass'n, 183 So. 3d 468, 470 (Fla. 4th DCA 2016); Brown v. Brown, 730 So. 2d 406, 406-
07 (Fla. 5th DCA 1999); Mo-Con Props., Inc. v. Am. Mech., Inc., 289 So. 2d 744, 745
(Fla. 4th DCA 1974). We recognize that the clerk's delay in entering the default
effectively permitted the Defendants to file a paper after a default could properly have
been entered. But in light of rule 1.500(c), a defendant is nevertheless entitled to plead
or defend the action if it does so before the default is entered.
Therefore, we reverse the order denying the motion to set aside default
and the default final judgment. We remand for further proceedings and direct the trial
court to grant the Defendants' motion to vacate the clerk's default.
Reversed and remanded.
LUCAS and SALARIO, JJ., Concur.