Third District Court of Appeal
State of Florida
Opinion filed January 27, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1292
Lower Tribunal No. 19-24688
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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
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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.
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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.
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