WAYNE CARSON, AS TRUSTEE, AND KEN FALK, APPELLANTS,
v.
KEITH ROSSIGNOL, APPELLEE
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Court reversed trial court's denial of motion to vacate default judgment where defendant had timely filed motion to quash and was not given notice of default application, violating Florida Rules of Civil Procedure 1.500.
A default judgment improperly entered by the clerk against a party who had timely filed a motion to quash service of process must be vacated, particularly where the party received no notice of the default application.
[1] A clerk of court may not enter a default judgment against a party who has filed any paper in the action, including a motion to quash service of process, without court inv…
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Join FLexlaw to unlock all legal intelligenceKenneth Falk was sued and timely filed a motion to quash service of process. The clerk of court then entered a default judgment against Falk without p…
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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.