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Appellate court vacates default entered on the same day that the tenant’s certificate of service stated that tenant’s attorney had mailed responsive pleading to landlord.

The landlord filed an eviction.  On November 30, 2009 the landlord filed and received a Clerk’s default against the tenant for failure to file a responsive pleading within five days as required by law.  Subsequently  a responsive pleading and payment of the rent claimed was received by the court  by mail postmarked November 30, 2009.   The tenant moved to vacate the default and the Court  denied the tenant’s motion.  The tenant appealed the  appellate court reversed stating:

“When 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. . . . A party may plead or otherwise defend at any time before default is entered. Fla. R. Civ. P. 1.500(a) & (c) ….

Service by mail shall be complete upon mailing.” Fla. R. Civ. P. 1.080(b). See Barnett Bank of Southwest Florida, N.A. v. Anderson, 488 So. 2d 923, 924 (Fla. 2d DCA 1986). “If a pleading containing a certificate of service is tendered for filing, the certificate is prima facie proof that service has been made effective as of the date of the certificate, even though a copy has not been received by the opposing party.” Gavin v. Gavin, 456 So. 2d 535, 537 (Fla. 1st DCA 1984) (emphasis added). We conclude that the tenant served the responsive pleading on November 30, 2009, the same day the clerk rendered the default….

Reversible error occurs when a clerk defaults an action on the same date the defaulting-party serves a responsive pleading. Roche v. Commercial Technical Consultants Co., 534 So. 2d 1243 (Fla. 5th DCA 1988); Anderson, 488 So. 2d at 924. Accordingly, we vacate the clerk’s default and default final judgment. Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734, 735 n.3 (Fla. 3d DCA 1980).

The court also noted that “

the tenant advanced that he faxed the answer, affirmative defenses, motion to dismiss, and counterclaim to the landlord’s counsel on November 30, 2009 at 6:21 p.m. See Exh. C. “Facsimile service occurs when transmission is complete” Fla. R. Civ. P. 1.080(b). Thus, service by facsimile became complete at 6:21 p.m. However, Rule 1.080(b) permitted delivering the answer by facsimile as long as the tenant also served the answer by an additional Rule 1.080(b) method (United States Postal Mail).

Comment:  The decision did not state what the postmark on the mailed copy of tenant’s pleading was.  If the pleading was not in fact mailed until 6:21pm on November 30, 2009,  then it was in fact served after the Clerk’s Default had been entered and after the five day response time had already elapsed,  which would make the appellate court’s finding erroneous.  It is not good practice, however, to file for a default when you know that the other side’s counsel has alerted you that they intend to file responsive pleadings, even if late.

DAVID BLAKE, Appellant-Defendant, v. RICK ADMANI, Appellee-Plaintiff. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-627 AP. L.C. Case No. 09-36465 CC 23.  Online Reference: FLWSUPP 1904BLAK

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