ERROR TO DENY MOTION TO VACATE CLERK’S DEFAULT WHERE THERE WAS CORRESPONDENCE BETWEEN COUNSEL FOR THE PARTIES PRIOR TO ENTRY, WHICH INDICATED THAT DEFENDANT WAS REPRESENTED BY COUNSEL, AND INTENDED TO DEFEND SUIT
Ace Funding Source v. A1 Transportation, 46 Fla. L. Weekly D232 (Fla. 3rd DCA January 27, 2021):
Both in the motion to vacate, and the supporting affidavit of the defendant’s registered agent, defendant alleged that before entry of the clerk’s default, attorneys from both sides discussed defendant’s representation by counsel and its intent to defend. Plaintiff did not file a response to the motion to vacate, nor was there a transcript from the hearing, leaving defendant’s statements unchallenged.
The trial court ultimately denied the motion to vacate the clerk’s default, finding that the defendant had been served with the complaint, and that the trial court found it failed to establish excusable neglect, due diligence, and a meritorious defense.
Florida Rule of Civil Procedure 1.500 allows entry of a clerk’s default when a party fails to file or serve any paper in the action, but it should be liberally construed in favor of deciding the case on the merits. The correspondence between the parties’ attorneys prior to entry of a clerk’s default fell squarely within the definition of “paper” as defined by the court. Because the plaintiff was on notice that defendant was represented by counsel and intended to defend against the dispute, the court found the clerk’s default was improvidently entered, and that the final judgment could not stand.