ACE FUNDING SOURCE, LLC v. A1 TRANSPORTATION NETWORK, INC. ( 2021 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed January 27, 2021.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D20-1292
    Lower Tribunal No. 19-24688
    ________________
    ACE Funding Source, LLC,
    Appellant,
    vs.
    A1 Transportation Network, Inc.,
    Appellee.
    An Appeal from non-final orders from the Circuit Court for Miami-Dade
    County, Barbara Areces, Judge.
    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
    2
    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
    1
    We 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.
    3
    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.
    4