Carson v. Rossignol ( 1990 )

GUNTHER, Judge.

We reverse the trial court’s denial of Kenneth Falk’s motion to vacate the default judgment entered against him by the clerk of court.

Rule 1.500, Florida Rules of Civil Procedure, governs the entry of a default judgment. The pertinent parts provide:

(a) By the Clerk. When a party against whom an 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 judgment against the party failing to serve or file such paper.

(b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules ... the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default.

Since Falk had timely filed a motion to quash before the entry of the default, the clerk of court improperly entered the default.

Furthermore, pursuant to the rule, once Falk filed a motion to quash, he was entitled to notice of the application for default, which he did not receive.

Therefore, the trial court abused its discretion in refusing to vacate a default where a motion to quash service of process had been filed and no notice was given to Falk as to the entry of the default.

REVERSED.

DELL and STONE, JJ/, concur.