Summary
holding that the filing of the motion to dismiss for the failure to state a cause of action precluded any subsequent entry of default
Summary of this case from Sansbury v. Wells Fargo Bank, N.A.Opinion
No. 91-1191.
February 21, 1992. Rehearing Denied March 17, 1992.
Appeal from the Circuit Court, Volusia County, William C. Johnson, Jr., J.
B. Paul Katz of Chiumento Katz, P.A., Palm Coast, for appellants.
Walter B. Dunagan, Daytona Beach, for appellants.
This is a confused and confusing case, described by the trial court as a "procedural morass," but the issue before us boils down to the validity of a default entered against the appellants James C. and Rosemary Carder and Belmont Homes, Inc. The motion for that default was filed on June 1, 1989, but the default itself was not entered until February 25, 1991. In the interim, the defendants filed a motion to dismiss, which was denied on July 21, 1989.
The filing of the motion to dismiss precluded any subsequent entry of default in respect to any complaint pending at that time. Fla.R.Civ.P. 1.500(c). See Board of Regents, University of Florida v. Hardin, 393 So.2d 1134 (Fla. 1st DCA 1981); Chester, Blackburn Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980).
Resurrection of this case is far from consistent with the tenets of judicial economy. As the trial court has noted, it is a procedural nightmare which seems to have taken on a life of its own. As was stated by the court in Board of Regents:
[W]e do not in any way condone the dilatory behavior of Appellants' counsel in this proceeding, nevertheless, the meaning of the applicable sentence in Rule 1.500(c) is plain, and the literal interpretation given it in the cases cited above is unavoidable. No exceptions exist to cover the unfortunate situation presented in this case.
Although this appeal presents another "unfortunate situation," we must reverse the default judgment entered below.
REVERSED AND REMANDED.
GOSHORN, C.J., concurs.
GRIFFIN, J., concurs in result only.