JESSIE RUCKER, APPELLANT,
v.
THEODORE WILLIS MCGRIFF, APPELLEE

Fla. 4th DCA | 1991-01-16
No. 89-2515
Glickstein, J., Walden, J., Warner, J.
572 So. 2d 568 Florida District Court of Appeal, Fourth District (1991) Positive Treatment
Cited by 1 case

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Appeal from order vacating default is dismissed as non-final and nonappealable because no final judgment was ever filed, and any default judgment would have been erroneous for failure to comply with notice and trial procedures on damages.


Holding

An appeal from an order granting a motion to vacate a default is non-final and nonappealable when no final judgment has been filed.


Headnotes

[1] A defendant in a civil action is entitled to have a default vacated where the defendant files an answer after an order of default is signed but before it is filed.

[2] A default judgment is erroneous if entered without providing the defendant notice and an opportunity for a trial on damages as required by Florida Rule of Civil Procedure…

Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Appellant sought to enforce a default judgment against appellee, but the record shows no final judgment was ever filed and the court did not believe o…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

This appeal from an order granting a motion to vacate a default is dismissed as a non-final nonappealable order as it does not appear from the record transmitted by the clerk that the Final Judgment was ever filed, and certainly from the transcripts of proceedings it appears that the court did not believe that a final judgment had been filed. See Broward Employment and Training Admin. v. Community Partnership Program, Inc., 422 So. 2d 1101 (Fla. 4th DCA 1982).

Cf. Humbert v. Ackerman, 541 So. 2d 1229 (Fla. 3d DCA 1989) (defendant in action entitled to have default vacated where he filed his answer after order of default signed but before it was filed). Moreover, as appellee points out any default judgment would have been erroneously entered because appellee was entitled to notice and a trial on damages even if a default had been entered on liability. Fla. R.Civ.P. 1.440(c).

From the face of the record there was no order setting trial, and it appears that only an unserved affidavit of damages, which was filed on the same date as a hearing for final judgment subsequent to default, was relied on by appellant to justify the final judgment.

However, this hearing was not held pursuant to an order setting trial on the damage issue. This is patently insufficient and not in compliance with rule 1.440 governing the setting of actions for trial.1

GLICKSTEIN, WALDEN and WARNER, JJ., concur. . This may be the reason why no final judgment was entered — because the court recognized that the appropriate procedure had not been followed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • D.G. Manesiotis v. H.H.B.K., Inc., 582 So. 2d 1260 (Fla. 4th DCA 1991)
    …PER CURIAM. We dismiss this cause on the authority of Rucker v. McGriff, 572 So. 2d 568 (Fla. 4th DCA 1991). GLICKSTEIN, C.J., and POLEN and GARRETT, JJ., concur.…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw