DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROSE LANNQUIST a/k/a ROSE LANNQUIST GOULDY,
Appellant,
v.
AMANDA MUNYON a/k/a AMANDA J. MUNYAN,
MICHAEL PEAK a/k/a MICHAEL PIEK, ERICA WOLF,
CARY LOWITZ, and KATHRYNE LEWIS,
Appellees.
Nos. 4D19-2722 and 4D19-3371
[November 25, 2020]
Consolidated appeal from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Dina Keever-Agrama, Judge; L.T. Case No.
502013CP003317XXXXNB.
Thomas J. Ali of Jupiter Legal Advocates, Palm Beach Gardens, for
appellant.
Timothy M. Chiasson, Jonnie M. Jennings, and Daniel C. Perri of Perri
& Jennings, Shalimar, for appellees Amanda Munyon and Michael Peak.
KUNTZ, J.
Rose Lannquist Gouldy, the personal representative of her late
husband’s estate, appeals two final orders in two consolidated appeals
involving the attempted sale of real property to the appellees. We reverse
and remand for further proceedings.
After the appellees petitioned for surcharge against the personal
representative, the clerk of court entered a default for her failure to
respond. The personal representative moved to vacate the default, arguing
mistake, inadvertence, excusable neglect, meritorious defense, and due
diligence. The court denied the personal representative’s motion to vacate
because she failed to timely respond to the appellees’ petition for surcharge
and failed to show mistake, inadvertence, or excusable neglect. The court
entered a final default judgment against the personal representative.
On appeal, the personal representative argues the clerk’s default was
void. We agree. Because an improperly entered clerk’s default is void ab
initio, the personal representative did not need to raise this argument
below. See DeRosa v. Pugliese, 782 So. 2d 1011, 1011 (Fla. 4th DCA 2001)
(“[T]he clerk’s default was void ab initio because appellants served their
answer and affirmative defenses before the clerk entered its default.
Therefore, appellants were not required to raise the argument in the trial
court that the default was void . . . to preserve that point for appellate
review.” (citations omitted)).
“When a party against whom affirmative relief is sought has failed to
file or serve any document in the action, the party seeking relief may have
the clerk enter a default against the party failing to serve or file such
document.” Fla. R. Civ. P. 1.500(a). But if the defendant filed any paper
in the action, the clerk is not permitted to enter a default. Stuart-Findlay
v. Bank of Am., Nat’l Ass’n, 183 So. 3d 468, 470 (Fla. 4th DCA 2016)
(quoting Ziff v. Stuber, 596 So. 2d 754, 755 (Fla. 4th DCA 1992)). At that
point, Florida Rule of Civil Procedure 1.500(b) “requires service of a notice
of application for default and requires the court, not the clerk, enter any
default.” Ziff, 596 So. 2d at 755 (citation omitted).
In this case, the personal representative filed multiple documents
before the clerk entered the default, including a designation of email
address, a motion to withdraw as counsel, and an amended motion to
withdraw as counsel. Other documents were filed, but one is sufficient.
See Robles v. Fed. Nat’l Mortg. Ass’n, 255 So. 3d 986, 989 (Fla. 3d DCA
2018) (noting that the filing of a notice of appearance or a motion for an
extension of time was “any paper”).
The personal representative filed “any paper” before the entry of the
clerk’s default. We therefore reverse the circuit court’s order denying the
personal representative’s motion to vacate the default and remand for
further proceedings.
Reversed and remanded for further proceedings.
CIKLIN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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