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Author Topic: Some FL law references  (Read 21731 times)
fraudfighter
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« on: August 18, 2006, 12:28:25 PM »

“Florida five-year limitation statute embraces actions in which instrument of writing is relied on as basis of right to sue, and not actions where instrument of writing is not declared on as basis of right, but is only an incident in its accrual.”, Webb v. Powell, 87 F.2d 983, C.A. 5, Fla., 1937.



Not from FL but is says it as good as any, and it matches FL's SoL law for written instruments:
“Contract is considered written for purposes of statute of limitations if all essential terms are reduced to writing and can be ascertained from instrument itself; if parol evidence is necessary to make contract complete, then contract must be treated as oral for purposes of statute of limitations.” Held v. Held, 137 F.3d 998 (7th Cir. 1998)


Intrinsic fraud, move for 1.420(b) involuntary dismissal:
Cox v. Burke, 706 So.2d 43, “Where party lies about matters pertinent to party’s own claim, and perpetrates a fraud that permeates entire proceeding, dismissal of whole case for fraud on court is proper.”; also Kornblum v. Schneider, 609 So.2d 138, “where a party perpetrates a fraud on the court which permeates the entire proceeding, dismissal of the entire case is proper.”; also Desimone v. Old Dominion Insurance Co., 740 So.2d 1233, Savino v. Florida Drive In Theatre Management, Inc., 697 So.2d 1011.



Beat down the JDB lawyer in a summary judgment hearing with this:
Statements by the plaintiff attorney in brief and argument are not sufficient for summary judgment- Trinsey v. Pagliaro, 229 F. Supp. 647, E.D. Penn, 1964, “Statements by counsel in their briefs or arguments are not sufficient for purposes of granting a motion for summary judgment”, 28 U.S. Code, Annotated.



“Defense of subject matter jurisdiction can be raised at any time”, Cunningham v. Standard Guaranty Ins., Co., 630 So.2d 179, (Fla. 1994).


CoA accrual:
“Cause of action on contract accrues and statute of limitation begins to run from time of breach of the contract.” State Farm Mutual Automobile Insurance Co. v. Lee, 678 So.2d 818, Fla. 1996.



Moving for 1.140(b)(6) MTD on a SOL defense:
A limitations defense is generally raised affirmatively in an answer or other responsive pleading, but may be asserted in a motion to dismiss if its applicability is demonstrated on the face of the complaint or exhibits. See Koehler v. Merrill Lynch & Co., Inc., 706 So. 2d 1370 (Fla. 2d DCA 1998); S.A.P. v. Dept. of Health & Reh. Servs., 704 So. 2d 583, 584 (Fla. 1st DCA 1997)

Moving for 1.140(b)(6) MTD on a 1.130(a) violation:
“A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint.”
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th DCA 1992)
See also Contractors Unlimited, Inc. v. Nortrax Equipment Co. Southeast, 833 So.2d 286 (Fla. 5th DCA 2002)


Another summary judgment protection:
“Evidence which is subject to objection at time of trial is subject to being noted as unavailable at time of hearing on summary judgment.”
Riviera Printing Co. v. Hessler’s, Inc. 109 So.2d 778 (Fla. App.? 1959)
Pollock v. Kelly 125 So.2d 109 (Fla. App.? 1960)


More SoL:
“Intent of statute setting forth limitations period for contract actions is to limit commencement of actions from time of their accrual.”
“Generally, cause of action on contract accrues and statute of limitations begins to run from time of breach of contract.”
State Farm Mutual Auto. Ins. Co. v. Lee, 678 So.2d 818 (Fla. 1996)

“A cause of action on an oral loan payable on demand accrues, and the statute of limitations begins to runs, at the time when demand for payment is made.” Mosher v. Anderson, 817 So.2d 812 (Fla. 2002)

“The statute of limitations attaches when there has been notice of an invasion of a legal right of the plaintiff or he has been put on notice of his right to as cause of action.”
City of Miami v. Brooks 70 So.2d 306, (Fla. 1954)

“Generally, under Florida law, the statute of limitations begins to run when a person has notice of an invasion of legal rights or notice of his right to a cause of action.” Laney v. American Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347 (M.D. Fla. 2003)

“Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete, in applying the statute of limitations it must be treated as an oral contract.”
McGill v. Cockrell, 101 So. 199 (Fla. 1924) Id. at 201.



FDCPA applies to JDB lawyers and their litigation tactics:
“Fair Debt Collection Practices Act applied to lawyer regularly engaged in consumer debt-collection litigation on behalf of creditor client.”
Heintz v. Jenkins, 514 U.S. 291, 115 S. Ct. 1489 (1995)

“Attorneys, like other persons, are subject to definition of debt collector under Fair Debt Collection Practices Act (FDCPA). Consumer Credit Protection Act section 803(6). As amended 15 U.S.C.A. section 1692a(6).
Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (C.A. 9th Cir. 1994)

“Fair Debt Collection Practices Act sections prohibiting false or misleading representations and unfair practices impose strict liability and, thus, knowledge or intent does not have to be pled to state a prima facie violation of those sections.”
“Debt Collector subject to civil liability for violating the Fair Debt Collection Practices Act could be held liable for damages actually sustained by the injured person, additional statutory damages, and costs and attorney fees incurred.”
Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355 (S.D. Fla. 2000)


You need to show scienter for common law fraud:
“Scienter element of fraud, which in application is usually intertwined with falsity element, requires that representations must have been known to be false or were made with reckless disregard for truth amounting to willful misrepresentation.”
In re Firestone, 26 B.R. 706, Bkrtcy. S.D. Fla. 1982.

“The scienter of the maker of a false representation can be established by proof that the representation was made with actual knowledge of its falsity, or without knowledge either of its truth or falsity, or under circumstances in which the person ought to have known, if he did not know, or its falsity.”
Joiner v. McCullers, 28 So.2d 823 (Fla. 1947)

“Intent to defraud, being of state of mind, is not subject to direct proof and can only be inferred from circumstances.”
Great American Ins. Co. v. Coppedge, 405 So.2d 732, (Fla. App. 4 Dist. 1981) review denied 415 So.2d 1359



Pro se notice for pleading leniency and possibly rules of civil procedure leniency:
“Where pro se pleads in a suit, the court should endeavor to construe pro se pleadings without regard for technicalities.”
Picking v. Pennsylvania R. Co., 151 F.2d 240 (C.A. 3rd Cir., 1945)

“When … pro se, allegations must be read liberally and court must hold to a less stringent standard than those drafted by attorneys.”
Raber v. Osprey Alaska, 187 F.R.D. 675 (M.D. Fla. 1999)

“Allegations of pro se are held to less stringent standards than formal pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594 (1972)

“Pro se pleadings requires less stringent reading than one drafted by lawyer.”
Puckett v. Cox, 456 F.2d 233 (C.A. 6th Cir. 1972)



It's not easy, if not impossible, to recover your lost time beating the scumbags off:
“Generally, a court may only award attorney’s fees when such fees are “expressly provided for by statute, rule or contract.” Hubbel v. Aetna Cas. & Sur. Co., 758 So.2d 94. (Fla. 2000)

In very limited circumstances, courts are also authorized to award fees based upon the misconduct of a party:
See Bitterman v. Bitterman, 714 So.2d 356 (Fla. 1998)
Explaining that although “rarely applicable, the “inequitable conduct doctrine” permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.



Vacate a judgment by 1.540(b), you wind up back in the trial court:
When a court vacates a judgment pursuant to a rule 1.540 motion, the effect of that ruling is to return the case and the parties to the same position that they were in before the court entered the judgment.
See Adelheim v. Dougherty, 176 So. 775 (Fla.1937)
Zwakhals v. Senft, 206 So.2d 62 (Fla. 4th DCA1968)
See also Fla. Jur. 2d Judgments and Decrees section 356 (1994)



If they want to argue lost instrument, since they have no proof, you argue no proof provided by plaintiff that you won't be sued by real holder, thus no reestablishment of lost instrument according to 673.3091:
Section 673.3091: Enforcement of lost, destroyed or stolen instrument:
(1) a person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person was in possession of the instrument and entitled to enforce it when loss of possession occurred:
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c ) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or person that cannot be found or is not amendable to service of process.
(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, section 673,3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. F.S. 673.3091(2)
State Street Bank and Trust Co. v. Lord, 851 So.2d 790 (Fla. 4th DCA 2003)

Defendant’s are entitled to assurance that a holder of the lost and/or destroyed instruments will not later sue them.
Shores v. First Florida Resource Corp., 267 So.2d 696 (Fla. 1972)


A little information about compromise and settlement:
Fla. D 2d, Limitations of Actions, section 149(4): compromise or settlement
“Where there was no evidence that note discharged original debt but notes evidenced a compromise and agreement to accept $1000 in full payment of debt and an agreement to pay $1000 in full settlement, the transaction did not cancel original debt or create a new debt and, therefore, action could be maintained on original debt and notes could be relied on as evidence of agreement and promise to pay debt within period of statute of limitations.”
Williams v. Lawyer’s Co-op Pub. Co., 187 So. 788 (Fla. 1939)


“A compromise payment to employee afforded no basis for implying a new promise to pay the whole debt, so as to start a new limitations period, where it was not paid and received according to written release as part payment of original claim but as full payment of contract of compromise.”
McCloskey & Co. v. Eckart, 164 F.2d 257 (C.C.A. 5, Fla. 1986)


Plaintiff’s burden of proof: two considerations: legal sufficiency of the pleadings and legal sufficiency of the proof. (FL. Long-arm statute)
“Elmex Corp. v. Atlantic Federal Savings & Loan, 325 So.2d 58 (Fla. ? DCA 1976)


Elements of Compromise and Settlement defense
Miller-Dunn Co. v, Green 16 So.2d 637 (Fla. 1937)
United States Rubber Products v. Clark, 200 So. 385 (Fla. 1941)
Bryan, Keefe & Co. v. Howell, 109 So. 593 (Fla. 1926)
Pino v. Lopez, 361 So.2d 192 (Fla. 3rd DCA 1978)
McGehee v. Mata, 330 So.2d 248 (Fla. 3rd DCA 1976)
Hannah v. James A. Ryder Corp., 380 So.2d 507 (Fla. 3rd DCA 1980)
Miller v. Jung, 361 So.2d 788 (Fla 2nd DCA 1978)


Acknowledge a debt, a promise to pay is inferred:
"Where there is a distinct acknowledgemnt, in writing, of a debt, a promise to pay will be inferred."
Whale Harbor Spa, Inc. v. Wood, 266 F.2d 953 (C.A. 5, Fla. 1959)

“Where there is a direct and unqualified admission in writing of a previous subsisting debt which the party is willing to pay, a promise to pay is raised by implication of law.” Hall v. Brown, 86 So. 277 (Fla. 1920)


Doctrine of avoidable consequences: nice to know, and may possibly by argued against JDB, but other well settled law of damages says this is not applicable in contract actions, where damages are those that are forseeable which flow from the breach.

Under the doctrine of avoidable consequences, a party to a contract who is subject to an injury from the other party’s breach must take reasonable efforts and exercise reasonable care to reduce the resulting damages as much as is practicable.
Canada v. Allstate Ins. Co., 411 F.2d 517 (C.A. 5, 1969)
Young v. Cobbs, 110 So.2d 651 (Fla. 1959)
Latour Auto Sales, Inc. v. Stromberg-Carlson Leasing Corp. 335 So.2d 600 (Fla. 3rd DCA 1976)
Brewer v. Northgate of Orlando, Inc., 143 So.2d 358 (Fla. 2nd DCA 1962)

If by reasonable exertion or care the injured party could have prevented damages resulting from the defendant’s breach, the injured party cannot recover for the breach.
Moses v. Autuono, 47 So.925 (Fla. 1908)

Plaintiff should not recover for those consequences of Defendant’s act that are readily avoidable by the Plaintiff.
State ex rel. Dresskell v. City of Miami, 13 So.2d 707 (1943)
Jenkins v. Graham, 237 So.2d 330 (Fla. 4th DCA 1970)
First Nat. Ins. Agency, Inc. v. Leesberg Transfer & Storage, Inc., 139 So.2d 476 (Fla. 2nd DCA 1962)

A party cannot recover damages flowing from consequences that the party could reasonably have avoided by the exercise of due care.
Air Caledonie Intern. v. AAR Parts Trading, Inc.
315 F. Supp. 2d 1319 (S.D. Fla. 2004)


LIQUIDATED DAMAGES
Liquidated damages are damages the amount of which has been made certain and fixed either by the act and agreement of the parties or by operation of law to a sum which cannot be changed by the proof.
Liquidated damages are the sum which a party to a contract agrees to pay if he or she fails to perform and which, having been arrived at by good-faith effort to estimate actual damages that will probably ensue from the breach, is recoverable as agreed-upon damages should breach occur.
American Jurisprudence 2d, Damages s. 489.

Parties to a contract can stipulate in advance an amount to be paid or retained as liquidated damages in the event a breach of the contract occurs, and a stipulated sum which is determined to be liquidated damages rather than a penalty is enforceable.
Stenor, Inc. v. Lester, 58 So.2d 673 (Fla. 1951)
Poinsettia Dairy Products v. Wessel Co., 166 So. 306 (Fla. 1936)

However, the sum stipulated must, under the circumstances, be reasonable and the damages in their nature uncertain and it must be apparent that it was the intention of the parties to provide in fact for liquidated damages and not for a penalty.

The purpose in permitting a stipulation for damages as compensation is to render certain and definite that which appears to be uncertain and not easily susceptible to proof.
Pembroke v. Caudill, 37 So.2d 538 (Fla. 1948), (overruled in part 259 So.2d 129, 492 F2d 87)
Chace v. Johnson, 123 So. 519 (Fla. 1929)

However, the principle of “just compensation” for an injury resulting from the breach of the contract must be kept in mind and when the parties attempt to stipulate a sum that is disproportionate to the liability, the courts will not enforce the stipulation, confining the parties instead to actual damages.
Pembroke v. Caudill, 37 So.2d 538 (Fla. 1948), (overruled in part 259 So.2d 129, 492 F2d 87)

If the stipulation is construed as a penalty, it is not enforceable, and no amount is recoverable other than that which will compensate for the actual loss.
Williams v. Crouch, 186 So.2d 491 (Fla. 1966)
Paradis v. Second Ave. Used Car Co., 61 So.2d 919 (Fla. 1952)
Glynn v. Roberson, 58 So.2d 676 (Fla. 1952)
Stenor, Inc. v. Lester, 58 So.2d 673 (Fla. 1951)

There is no fixed rule to determine whether a stipulation is a penalty or liquidated damages; each case must be governed by its own facts and circumstances.
Pembroke v. Caudill, 37 So.2d 538 (Fla. 1948)
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« Reply #1 on: August 18, 2006, 12:44:47 PM »

Rule 1.500: if you appear and file/serve court papers, the JDB better not try to move for a clerk's default: that's a due process violation and a resultant void judgment:


“When party against whom affirmative relief is sought has appeared in any action by filing or serving papers, that party shall be served with notice of application for default.”
Department of Transp., State of Florida v. Mastrangelo, 691 So.2d 643 (Fla. 5th DCA  1997)
“An appearance is considered to have occurred once a party files a paper in the action.”
Section 240, Fla. Jur. 2d, pg. 274.

“Once a party filed a paper in the action, the clerk may no longer enter a default on behalf of the plaintiff.”
Turner v. Allen, 389 So.2d 686 (Fla. 5th DCA 1980),
“regardless of whether the paper is responsive to the complaint.”
Carr v. Butler, 590 So.2d 508, 16 Fla. L. Weekly D2999  (Fla. 4th DCA 1991).

“In construing the right to enter a default under the rule providing that the default may be entered against defendant only if defendant has failed to file or serve any paper in the action, term “paper” is construed liberally and includes any written communication that informs the plaintiff of the defendant’s intent to defend.”
Becker v. Re/Max Horizons Realty, Inc., 819 So.2d 887 (Fla. 1st DCA 2002)

“Once “any paper” has been served by party against whom default is entered, default judgment rule requires that proper notice of the application for default be given to the opposing party and that the court, not the clerk, enter the default.”
Green Solutions Intern., Inc. v. Gilligan, 807 SO.2d 693 (Fla. 5th DCA 2002)

“The authority of the clerk … to enter a default judgment against a defendant for failure to appear, plead, or demur is purely statutory, and must be strictly construed.”
Arcadia Citrus Growers Ass’n v. Hollingsworth, 185 So.2d 431 (Fla. 1938)
 
“In regard to vacating defaults, rules of procedure should be construed liberally so as to achieve substantial justice in the case.”
County Nat. Bank of North Miami Beach v. Sheridan, Inc. 403 So.2d 502 (Fla. 4th DCA 1981)

“Upon filing motion to quash service of process, movant was entitled to notice of application for default.”
“Trial court abused its discretion in refusing to vacate default, where motion to quash service of process has been filed and no notice was given to movant as to entry of default.”
Carson v. Rossignol, 559 So.2d 433 (Fla. 4th DCA 1990)

“Where default is void, it is unnecessary for party against whom default was entered to demonstrate the existence of a meritorious defense, excusable neglect, and due diligence in moving to set aside default.”
Dawkins, Inc. v. Huff, 836 So.2d 1062 (Fla. 5th DCA 2003)

“Where an order of default is invalid, defendant need not show a meritorious defense in order to be entitled to a setting aside of the default and default judgment.”
Hyman v. Canter, 389 So.2d 322 (Fla. 3rd DCA 1980)



Unliquidated damages: a due process violation if evidence is conflicting on what the true sums are and no hearing and opportunity to be heard was provided by the JDB to the defendant: result void judgment

“Damages are not liquidated if their ascertainment requires taking of testimony to ascertain facts upon which to base a value judgment.”
“Defaulting party has due process entitlement to notice and opportunity to be heard as to presentation and evaluation of evidence necessary to judicial determination of amount of unliquidated damages.” U.S.C.A. Const. Amends. 5, 14
Bowman v. Kingsland Development, Inc.,. 432 So.2d 660 (Fla. 5th DCA 1983)

“Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation.”
Bowman v. Kingsland Development, Inc.,. 432 So.2d 660 (Fla. 5th DCA 1983)

“Judicial error in entering judgment without requiring or providing notice to defaulting party and opportunity to be heard as to presentation and evaluation of evidence necessary to judicial determination of amount of unliquidated damages. Protection of this right is provided by Florida Rule of Civil Procedure 1.080 (h)(1) and the last sentence in Rule 1.440(c). See Turner v. Allen, 389 So.2d 686 (Fla. 5th DCA 1980).”
Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983)

“Even if default has been properly entered against defendant, he was entitled to receive notice of order setting a hearing on damages prior to entry of a final judgment because the claim involved unliquidated damages.”
Turner v. Allen, 389 So.2d 686 (Fla. 5th DCA 1980)


“Failure to give adequate notice and opportunity to be heard before entering default is violation of due process and requires that default order be vacated.” F.S.A. RCP Rules 1.200(c), 1.500(b)
Zeigler v. Huston, 626 So.2d 1046 (Fla. 4th DCA 1993)

“Element of damages is not ancillary to subject matter of cause regardless of how straight forward and ministerial the calculation of those damages may be.”
“The determination of prejudgment interest is directly related to the cause at issue and is not incidental to the main adjudication.” Id at 1044.
McGurn v. Scott, 596 So.2d 1042 (Fla. 1992)

“Defendant … was entitled to have his motion to set aside default judgment granted, where defendant did not receive notice of a hearing or trial to determine actual damages, and claim involved unliquidated damages.” Rule 1.440(c)
Tand v. C.F.S. Bakeries, Inc, 559 So.2d 670 (Fla. 3rd DCA 1990)

“Rule providing for relief from judgment of default for fraud, misrepresentation or other misconduct of adverse party is a rule providing for equitable relief and is to be liberally construed.”
“Nature of default judgment is such that a misleading statement by affidavit as to amount of damages constitutes a misrepresentation by adverse party for purposes of rule providing for relief from judgment.”
Lacore v. Giralda Bake Shop, Inc., 407 So.2d 275 (Fla. 3rd  DCA 1981)  

“A motion to vacate a default judgment may not be denied absent an evidentiary hearing.”
Hernandez v. National Bank of Florida, 423 So.2d 920 (Fla. 3rd DCA 1992)
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« Reply #2 on: August 21, 2006, 03:49:46 PM »

Composite documents: the one possible way to written instrument-hood for credit card documentation.

“Several writings, such as letters or telegrams, may constitute a valid and binding written contract when they evidence a complete meeting of the minds of the parties and an agreement upon the terms and conditions of the contract.”
Edgewater Beach Corp. v. Sugarman, 15 So.2d 260 (Fla. 1943)

“A complete contract may be gathered from such writings and be so connected with each other as to constitute one paper.”
McCay v. Seaver, 124 So. 44 (Fla. 1929)
Webster Lumber Co. v. Lincoln, 115 So. 498 (Fla. 1927)

“Where several different writings constitute a contract, they will be construed together.” Maas Bros., inc. v. Dickinson, 195 So.2d 193 (Fla. 1967)
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« Reply #3 on: August 21, 2006, 03:56:55 PM »

Some more written instrument case law details:

“In order for a contract to be founded upon a written instrument, the instrument must contain a contract to do the thing for the nonperformance of which the action is brought. The mere fact that it is remotely or indirectly connected with it or would be a link in the chain of evidence to prove the cause of action is not sufficient.”
Gulf Life Ins. Co. v. Hillsborough County, 176 So. 72, (Fla. 1935) citing Ball v. Roney and a California case.

“Where there is an affirmative obligation expressed in a writing to do the act for the non-performance of which an action is brought and the writing is signed by the party to be charged and there is consideration for the promise, there is a contractual obligation in writing even though other terms of the agreement may be vague or indefinite.”
Meehan citing Gulf Life and McGill.

Gulf Life says nothing about a signature!!


Does the instrument create a right?
A promise to pay a reasonable sum
McGill v. Cockrell, 101 So. 199 (Fla. 1924)
McGill v. Cockrell weighs “where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete, in applying the statute of limitations it must be treated as an oral contract.”
Where no resort to parol evidence is necessary to make the agreement complete.
It was complete when she wrote ….
McGill decided the writing was sufficient to constitute a contract.
Lacking mutuality to start with, it became binding on her after performance on the promise.
It was a written request for professional services to be rendered in a certain matter of litigation and Cockrell became entitled to his compensation under the contract, not upon quantum meruit upon performance by the promise.
“What the law implies from the relation of parties created by an express agreement is as much a part of the contract as that which is expressed.” Taken from Bishop on Contracts.   

Plaintiff brought a suit on breach of contract theory.

“Where there is an affirmative obligation expressed in writing to do the act for the nonperformance of which an action is brought, and the writing is signed by the party to be charged, and there is consideration for the promise, there is a contractual obligation in writing even though other terms of the agreement may be vague or indefinite.”
Meehan v. Grimaldi & Grimaldi, Inc. 240 F.2d 775 (C.A. 5 1957)

“acknowledged its indebtedness”

“Where there is an affirmative obligation expressed in writing to do the act for the nonperformance of which an action is brought and the writing is signed by the party to be charged and there is consideration for the promise, there is a contractual obligation in writing.”
“we found that the language of this agreement is sufficient and has the essential elements cited hereinabove to determine the obligations of the respective parties and thus, we found that the subject action is founded on instruments of writing and , therefore, the five-year SoL is applicable.”
Mercy Hospital, Inc. v Carr, 297 So.2d 598 (Fla. 3rd DCA 1974) citing Meehan and Gulf Life.

 McGill v. Cockrell, 101 So. 199 (Fla. 1924)


Johnson:
In applying the statute of limitations, where the “evidence of liability” relied on is partly set forth in writings in the form of letters and the like, but the letters are incomplete in themselves, or are so indefinite as to necessitate and make unavoidable plaintiff’s resort to oral testimony to make complete the showing of any legal liability incurred by the defendant, under the terms of the transaction of which the writings are made a part, such agreement, partly written and partly oral, must be regarded as an oral contract, the liability arising under which is not founded upon an instrument of writing.”

“The writings relied on do not constitute a contractual acknowledgment of the loan of money by plaintiff to the defendant, which is the thing sued for, therefore, such writings can avail nothing to the plaintiff as a sufficient conclusion to the bar of the statute of limitations
Johnson v. Harrison Hardware & Furniture Co., 160 So. 878 (Fla. 1935) citing McGill v. Cockrell.




This is a good one to use as part of your attack on their failure to show chain of assignment and thus proof of bona fide assignment:

“Person not a party to nor in privy with a contract does not have right to sue for its breach.”
White v. Exchange Corp.167 So.2d 324 (Fla. 3rd DCA 1964)
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« Reply #4 on: August 21, 2006, 04:17:42 PM »

A good law reference to attack a default judgment, if you can show that as a matter of law, the complaint did not state a CoA (for open account: no itemized statement; for written instrument: no attachment):


“Default judgment should be set aside where complaint on its face fails to state cause of action, since failure to state cause of action, unlike formal or technical deficiencies, is fatal pleading deficiency.”
Lee & Sakahara Associates, AIA Inc. v. Boykin Management Co., 687 So.2d 394 (Fla. 4th DCA 1996), rehearing denied, review denied 698 So.2d 1070.
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« Reply #5 on: August 21, 2006, 05:38:15 PM »

Mostly Default Judgment cases:


“Jurisdiction of District Court of Appeal is limited to review of final orders of county judge’s courts”
In re Estate of Leterman, 238 So.2d 695 (Fla. 3rd DCA 1970)

“Where judgment is for damages, interest may not be added to principal award unless there can be conclusive determination of exact amount due and date from which interest can be computed.”
McCoy v. Rudd, 367 So.2d 1080 (Fla. 1st DCA 1979), dismissed 370 So.2d 461.


“When a contract provides for interest at not exceeding a certain rate but fixes no date or conditions on which interest is payable, the interest matures and becomes payable on same date that principal matures.”
State ex. Rel. Ben Hur Life Ass’n v. City of Hialeah, 177 So. 712 (Fla. 1937)





“Right to recover prejudgment interest is not absolute and can be waived.”
Volkswagen of America, Inc. v. Smith, 690 So.2d 1328 (Fla. 1st DCA 1997), rehearing denied.




“In absence of agreement fixing rate of interest in event of action to enforce contract, statutory interest rate applies.”
Delta D. Const. Corp. v. Triangle Marine Const. of Key West, Inc.; 567 So.2d 1010 (Fla. 3rd DCA 1990)





“Statute governing rate of interest in absence of contract does not apply to commercial leases which do not provide for payment of interest to tenant on a security deposit nor where a lease or contract set a variable rate of interest based on some ascertainable standard.”
WPB, Ltd. v. Supran, 720 So.2d 1091 (Fla. 4th DCA 1998), rehearing denied.


Defaults/Judgments
 “Defaults are liberally vacated so that the merits of a case can be reached.”
Dawkins, Inc. v. Huff, 836 So.2d 1062 (Fla. 5th DCA 2003)

“Where default is void, it is unnecessary for party against whom default was entered to demonstrate the existence of a meritorious defense, excusable neglect , and due diligence in moving to set aside the default.”
Green Solutions Intern., Inc. v. Gilligan, 807 So.2d 693 (Fla. 5th DCA 2002), rehearing denied.

“A motion to vacate a default judgment must be under oath.”
Dodrill v. Infe, Inc., 837 So.2d 1187 (Fla. 4th DCA 2002)

“When a final judgment is void from the outset, the requirement to file an appeal within 30 days of the rendition of the final judgment does not apply to bar relief from the judgment.”
Rinas v. Rinas, 847 So.2d 555 (Fla. 5th DCA 2003)

“If the final judgment is void, then time limits to rule governing motions to set aside final judgments do not apply.”
“A judgment may be attacked at any time when the face of the record reveals that not jurisdiction was obtained over the defendant because service of process was not perfected.”
Kirchoff v. Jenne, 819 So.2d 959 (Fla. 4th DCA 2002)

“An evidentiary hearing is required where the allegations of an affidavit in support of a motion for relief from judgment, if proven, would establish that the judgment is void.”
Leipuner v. F.D.I.C., 860 So.2d 1027 (Fla. 5th DCA 2003)

“Any competent court may adjudicate an order void for lack of jurisdiction over parties or subject matter.”
Hedge v. Hedge, 816 So.2d 241 (Fla. 4th DCA 2002)

“Void judgment may be attacked at any time because judgment creates no binding obligation on parties, is legally ineffective, and is a nullity.”
Fisher v. State, 840 So.2d 325 (Fla. 5th DCA 2003), rehearing denied.

“A judgment entered without due service of process is void.”
Carter v. Lil’ Joe Records, Inc., 829 SO.2d 953 (Fla. 4th DCA 2002)

“A trial court lacks jurisdiction to enter any judgment on an issue not raised by the pleadings.”
Newberry v. Newberry, 831 So.2d 749 (Fla. 5th DCA 2002)

“Judgment entered against a defendant without notice is void.”
Harris v. National Judgment Recovery Agency, Inc. 819 So.2d 850 (Fla. 4th DCA 2002), rehearing denied, review denied 839 So.2d 698.

“Under Florida law, default judgment for damages cannot be affirmed where underlying complaint does not contain sufficient allegations to sustain a claim of damages.”
In re Stewart, 280 B.R. 268 (Bkrtcy., M.D. Fla. 2001), reconsideration denied.

“The purpose of a default judgment is to speed the litigation to conclusion and to prevent a dilatory defendant from impeding the plaintiff’s claim; nonetheless, all doubt should be resolved in allowing trial on the merits.”
Wilson v. Pyle, 851 So.2d 779 (Fla. 2nd DCA 2003), rehearing denied.

“In construing the right to enter a default under rule providing default may be entered against defendant only if defendant has failed to file or serve any paper in the action, term “paper” is construed liberally and includes any written communication that informs the plaintiff of the defendant’s intent to contest the claim.” Rule 1.500(a).
Becker v. Re/Max Horizons Realty, Inc. 819 So.2d 887 (Fla. 1st DCA 2002)

“Clerk of court may not enter default against a defendant who has filed or served any paper in the action, and notice of any application for default must be provided to such a defendant.”
Geraci v. Preferred Capital Markets, Inc., 802 So.2d 479 (Fla. 3rd DCA 2001)

“Once “any paper” has been served by party against whom default is entered, default judgment rule requires that proper notice of the application for default be given to the opposing party and that the court, not the clerk, enter any default.” Rule 1.500(b)
Green Solutions Intern., Inc. v. Gilligan, 807 So.2d 693 (Fla. 5th DCA 2002), rehearing denied.

“Party against whom default judgment is entered can only be said to have admitted well pleaded facts and to have acquiesced in relief specifically prayed for.”
Marin v. Marin, 842 So.2d 273 (Fla. 3rd DCA 2003)

“Under general principles of Florida law, default admits liability as claimed in pleading by party seeking affirmative relief against party in default, and operates as admission of truth of well-pleaded allegations of the pleading, except those concerning damages; however, it does not admit facts not pleaded, not properly pleaded, or conclusions of law.”
“Under Florida law, upon entry of default, defaulting party admits only well-plleaded factual allegations of complaint and not admit conclusions of law.”
In re Stewart , 280 B.R. 268 (Bkrtcy., M.D. Fla. 2001), reconsideration denied.

“A defaulting defendant may not be held liable for amounts in excess of those allowed by the pleadings.”
State Farm Mutual Auto. Ins. Co. v. Horkheimer, 814 So.2d 1069 (Fla. 4th DCA 2001)

 ”Florida public policy favors an adjudication on the merits over the entry of default, and thus, a properly filed motion to vacate should be liberally granted.” Rule 1.540(b)(1)
R.H. v. Department of Children and Family Services, 860 So.2d 986 (Fla. App. 3 Dist. 2003), rehearing denied.

“Public policy favors liberality in setting aside defaults so that suits may be decided on their merits.” Rule 1.500 (a,d), 1.540(b)
Johnson v. Johnson, 845 So.2d 217 (Fla. 2nd DCA 2003), rehearing denied.

“There is a principle of liberality in setting aside defaults so the lawsuits may be decided on their merits.”
“Litigant who timely moves to set aside a default judgment, asserting a credible explanation of human error, is entitled to be head on the merits.”
Coquina Beach Club Condominium Ass’n, inc. v. Wagner, 813 So.2d 1061 (Fla. 2nd DCA 2002)

“Florida policy favors the setting aside of defaults so that controversies may be decided on the merits.”
Grosheim v. Greenspoint Mortg. Funding, Inc., 819 So.2d 906 (Fla. 4th DCA 2002)

“To be relieved of a default, a party must demonstrate excusable neglect, a meritorious defense, and due diligence in seeking relief.”
Dawkins, Inc. v. Huff, 836 So.2d 1062 (Fla. 5th DCA 2003)

Section 141: Invalidity of judgment:
“Equipment company failed to attach an adequate copy of the instrument being sued on to its complaint against guarantor of contractor’s unpaid invoices, and therefore default judgment against guarantor had to be set aside, where attached copy of application for credit, which was signed by guarantor, was substantially illegible.”
Rule 1.130(a).
“A default should be set aside if the complaint upon which it is based fails to state a cause of action.”
Contractors Unlimited, Inc. v. Nortrax Equipment Co. Southeast, 833 So.2d 286 (Fla. 5th DCA 2002)

“A motion to vacate a default judgment must be under oath.”
Dodrill v. Infe, Inc, 837 So.2d 1187 (Fla. 4th DCA 2003)

“The party subject to judgment by default, in asserting claim that court lacked personal jurisdiction, must establish by clear and convincing evidence that the service of process was invalid.”
Emmer v. Brucato, 813 So.2d 264 (Fla. 5th DCA 2002)

“Assertion that there was no service of process and/or that wrong parties were served was disputed by verified returns of service, and thus evidentiary hearing on issue of motion to vacate default final judgments was required.”
Koniver Stern Group v. Layfield, 811 So.2d 812 (Fla. 3rd DCA 2002)

“Where a movant seeking to vacate a default judgment is alleging a legal defense to the underlying claim, a meritorious defense may be shown by either an unverified pleading or an affidavit.” Rule 1.540(b)
American Network Transp. Management, Inc. v. A Super-Limo Co., Inc., 857 So.2d 313 (Fla. 2nd DCA 2003)
“It was error to deny owners the opportunity to testify at evidentiary hearing on motion to vacate default final judgment.”
Sperdute v. Household Realty Corp., 585 So.2d 1168 (Fla. 4th DCA 1991)

“Defendant was entitled to evidentiary hearing on its motion to set aside clerk’s default.”
Vacation Escape, Inc. v. Michigan Nat. Bank, 735 So.2d 528 (Fla. 4th DCA 1999)

“If there is any reasonable doubt, default judgment should be vacated to allow trial on the merits.”
Adams v. Colee, 520 So.2d 674 (Fla. 5th DCA 1988)

 “Facts of each case are of singular importance in determining whether or not a motion to set aside default judgment should be granted.”
Cricket Club, Inc. v. Basso, 384 So.2d 908 (Fla. 3rd DCA 1980)

“Where defendant had not engaged in dilatory tactics, sought stipulation from opposition to set aside default on same day it was entered, and filed affidavit setting forth grounds for excusable neglect and answer setting forth meritorious defense, refusal to set aside default was error.” Rules 1.500(d), 1.540(b)
Pedro Realty, Inc. v. Silva, 399 So.2d 367 (Fla. 3rd DCA 1981)

“In implementing policy that public policy favors setting aside of defaults, if there be any reasonable doubt in the matter of vacating the default, it should be resolved in favor of granting the application and allowing a trial on the merits.”
Lloyd’s Underwriter’s At London v. Ruby, Inc., 801 So.2d 138 (Fla. 4th DCA 2001), rehearing denied.

“Where defendant’s proffer of excusable neglect went only to his failure to file answer before hearing on plaintiff’s motion for default, held more than two months after complaint was served and one month after answer was due, and no excusable neglect relating to defendant’s failure to file answer when it was due was shown, trial court’s denial of motion to vacate default and final judgment was affirmed.” Rules 1.140, 1.500(b)
 Miami Steel Trader, Inc. v. Ryder Truck Lines, Inc., 401 So.2d 1146 (Fla. 3rd DCA 1981)

“Since precise circumstances constituting excusable neglect, mistake or inadvertence are not well-defined, facts of each case are of singular importance in determining whether or not relief from judgment on those grounds should be granted.”
Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3rd DCA 1978)

“Where motion for default judgment had been properly granted and defendant had failed to make any appearance or file any pleading until well after entry of final judgment, amount of damages could not be contested on motion to set aside default judgment.”
Overseas Development, Inc. v. Dominion Mortg. Corp., 330 So.2d 845 (Fla. 3rd DCA 1976), certiorari denied, 342 So.2d 1103.
“Whether usual place of abode of defendant has been in California at time of attempted service of process pursuant to statute authorizing service by leaving copy of initial pleading at defendant’s usual place of abode was question for trier of fact, in proceeding wherein defendant sought to have set aside final default judgment rendered on basis of a prior default judgment.”  F.S.A. 48.031, Rule 1.540(b)(4)
Outler v. Berman, 234 So.2d 724 (Fla. 3rd DCA 1970), certiorari denied, 238 So.2d 430.

“Second motion to vacate default judgment was properly granted, where movant raised additional grounds in second motion which were not raised in first motion, and additional facts revealed that default judgment had been erroneously entered.”
Crocker Investment, Inc. v. Statesman Life Ins. Co., 515 so.2d 1305 (Fla. 3rd DCA 1987), review denied, 525 So.2d 877

“In considering motion to set aside default, courts must evaluate both extent of delay as well as reasons for delay.”
Cinkat Transp., Inc. v. Maryland Cas. Co., 596 So.2d 746 (Fla. 3rd DCA 1992)

“Factual representations or arguments by counsel made during hearing on motion to vacate default judgment are not sufficient for movant to prove excusable neglect.”
Armando v. Plazza, 658 So.2d 1169 (Fla. 2nd DCA 1995)

“Since allegations in affidavits supporting motion for relief from default judgment in contract case would establish that defendant’s son, who was served with complaint at his residence in Florida, was not qualified to accept service for defendant, who resided in Pennsylvania, trial court was required to hold evidentiary hearing to determine whether facts in affidavits could be proven.” F.S.A. 48.031(1)(a)
Monsour v. Balk, 705 So.2d 968 (Fla. 2nd DCA 1998)

“When court is determining whether to vacate default judgment, each case should be evaluated under the totality of the circumstances of that specific case.”
All Mobile Video, Inc. v. Whitener, 773 So.2d 587 (Fla. 1st DCA 2000)

“After a default judgment has been entered, it is the defaulting party’s burden to establish by clear and convincing evidence that service was invalid.”
Aboudraah v. Tartus Group, Inc., 795 So.2d 79 (Fla. 5th DCA 2000), on rehearing in part.

“A motion to stay execution and set aside default and final judgment for plaintiff, predicated on fraud, mistake, and surprise, presented a fact question for trial court.”
F.S.A. 55.38
Kellerman v. Commerical Credit Co., 189 So. 689 (Fla. 1939). 138 Fla. 133

“Where motion to set aside default did not allege the existence of a meritorious defense and where no proof was ever submitted, other than representations of counsel, concerning any legal excuse for the failure to respond to the complaint, motion and proof were insufficient to justify setting aside default.”
Williams v. Stack, 366 So.2d 872 (Fla. 4th DCA 1979)

“Where record, when read in conjunction with defendant’s motion to vacate default judgment, and affidavits filed showed that defendant contended for facts which would, if proven, establish a meritorious defense, trial court should have vacated default and required filing of an answer within short time set by court.”
Bates v. Keyes Co., 261 So.2d 549 (Fla. 3rd DCA 1972), certiorari denied, 265 So.2d 371

“Absent a showing by clear and convincing evidence, of invalidity of service of process, denial of motion to set aside default and vacate final judgment in action for liquidated damages was not error.”
Livingston v. Fein, 359 so.2d 25 (Fla. 3rd DCA 1978)

“In light of policy to liberally set aside default judgments, trial court incorrectly determined that defendant failed to prove excusable neglect.”
Sportatorium, Inc. v. Kamilar, 407 So.2d 929 (Fla. 3rd DCA 1981)

“Mere representations of counsel unsupported by proof showing any excusable neglect or meritorious defense did not entitle defendants to relief from default.”
Vanguard Group, Inc. v. Vanguard Sec., Inc., 409 So.2d 1219 (Fla. 3rd DCA 1982)

“Proof presented to overcome presumptive correctness of the return which reflected that defendant was personally served was neither undisputed nor so clear and convincing as to require that default judgment be set aside.”
Gettys v. Browning, 417 So.2d 1094 (Fla. 3rd DCA 1982)

“Evidence, although conflicting, was sufficient to support trial court’s finding that service was valid, so that default judgment was not void, in view of appellants’ burden to establish invalidity of service by clear and convincing evidence.”
Dysart v. An Ultimate Pool Service & Repair, Inc (Fla. 3rd DCA 1989)

“Defendant failed to establish excusable neglect as was required to set aside adverse final judgment entered upon clerk’s default; defendant’s motion to vacate and affidavits in support thereof contained only conclusory assertions that defendant had meritorious defense to plaintiff’s complaint and no other sworn proofs were submitted establishing such defense, and defendant’s unsworn proposed answer, affirmative defenses and counterclaim were largely a general denial without sufficient allegation of supporting ultimate facts.”
Mathews Corp. v. Green’s Pool Service (Fla. 3rd DCA 1990), review denied 592 So.2d 681.

“Trial court did not err in failing to set aside default against bank on garnishment liability, where facts constituting excusable neglect were set forth only in unsworn motion, and were unsupported by any affidavit or other proof.”
Security Bank, N.A. v. Bellsouth Advertising & Pub. Corp., 679 So.2d 795 (Fla. 3rd DCA 1996), rehearing denied, review granted, 690 So.2d 1299, decision approved, 698 So.2d 254
 
“Evidence supported circuit court finding, in order vacating and setting aside default judgment previously entered in action to quiet title, that concealment, misrepresentation and extrinsic fraud were perpetrated on circuit court in that actual allegations alleged in complaint and affidavits for constructive service were untrue.”
Pender v. Hatcher, 303 So.2d 427 (Fla. 2nd DCA 1974

“Evidence established that sheriff’s return showing personal service of process upon defendants was false and hence, default judgment based thereon must be set aside.”
F.S.A. 47.13
McIntosh v. Wibbeler, 106 So.2d 195 (Fla .1958)

If there is any reasonable doubt on question of vacating a default, it should be resolved in favor of granting application and allowing a trial on merits.
Kindle Trucking Co. v. Marmar Corp., 468 So.2d 502 (Fla. 5th DCA 1985)





“Record sustained court’s finding that clerk improperly entered default after defendant served papers in action.”
West v. Wainwright, 380 So.2d 1338 (Fla. 1st DCA 1980)

”Order for final judgment in default” in breach of contract action was properly vacated, where no notice had been given to defendant of hearing at which plaintiff secured circuit court’s signature on order fixing unliquidated damages in amount of $527,000, since defendant was entitled to notice of hearing to fix damages, and order was not final judgment which could not be altered.
Singh-Derewa v. Smythe, 632 So.2d 174 (Fla. 5th DCA 1994)

 Property claimants were entitled to have default judgment of foreclosure set aside; judgment was based on fatal pleading deficiencies by lienholder, claimants never had notice of proceedings, and claimants established meritorious defenses.”
Decubellis v. Ritchotte, 730 So.2d 723 (Fla. 5th DCA 1999), rehearing denied

“It was incumbent on trial judge to require notice of hearing before entry of default, and to set aside any default entered contrary to that requirement, even if defendant’s notice of appearance had been improperly entered for purpose of delay and even though defendant received notice of application for default and took no steps to respond for more than 60 days: disagreeing with Fierro v. Lewis., 388 So.2d 1361 (Fla. 5th DCA).”
Barnett Bank of South Florida, N.A. v. Picchi, 503 So.2d 1373 (Fla. 4th DCA 1987), decision approved 521 So.2d 1090.

 
“Clerk’s failure to notify party that default has been entered against him may be material, and entitle party to relief from default upon showing of meritorious defense.” Rule 1.500(c )
Gelis v. Schuster, 562 So.2d 412 (Fla. 5th DCA 1990)

“Corporation and its sole shareholder were entitled to relief from default judgment and all subsequent orders entered in action for equitable lien and quantum meruit, where neither shareholder nor corporation received notice of application for default or notice of hearing after shareholder’s attorney withdrew from representation and failed to provide court with shareholder’s correct address.”
Williams v. Adams, 636 So.2d 191 (Fla. 3rd DCA 1994)

“Default entered against defendants after attorney had filed notice of appearance for them would not be vacated, although default was entered without notice of hearing; defendants had been served with motion for default.” Rule 1.500(b)
Mondeja v. Cuevas, 583 So.2d 1115 (Fla. 3rd DCA 1991)

“Where defendant filed a motion to dismiss action, plaintiff’s failure to produce certificate showing proof that he notified defendant of his application for default judgment required vacation of trial court’s order granting default.”
Gonzalez v. Moriyon, 553 So.2d 249 (Fla. 3rd DCA 1989)

“Any default entered in violation of rule of civil procedure’s due process notice requirement must be set aside without any regard as to whether a meritorious defense is presented or excusable neglect is established.” Rule 1.500(b)
International Energy corp. v. Hackett, 687 So.2d 941 (Fla. 3rd DCA 1997)

“When party against whom affirmative relief is sought has appeared in action by filing or serving papers, that party shall be served with application for default as required by rule; violation of rule warrants setting aside of default without consideration of whether or not meritorious defense was presented or whether excusable neglect was established.” Rule 1.500(b)
Yellow Jacket Marina, Inc. v. Paletti, 670 So.2d 170 (Fla. 1st DCA 1996)

“Illiteracy generally does not provide basis to set aside judgment on ground of excusable neglect, though it can be taken into account if it prevents person from discovering that legal proceedings have been taken against him until after rendition of judgment.”
“Default judgment could be set aside on ground of excusable neglect, where defendant was illiterate and defendant’s wife was emotionally sick during period in which she was served with process due to death of child that planned to adopt.”
”Excusable neglect can be grounded on psychological condition of party seeking relief from default judgment.”
Jax Sani Serva System, Inc. v. Burkett, 509 So.2d 1251 (Fla. 1st DCA 1987)

”It was error to deny motion to vacate default, where defendant’s counsel recited that answer or responsive pleadings were delayed because he suffered a sprained back, and pleadings and exhibits tendered demonstrated a colorable defense of accord and satisfaction to foreclosure of mechanic’s lien.”
Hurd v. Al Springer Roofing, Inc. 526 So.2d 784 (Fla. 3rd DCA 1988)

“Defendant’s belief, based on representations made by plaintiff’s attorney, that he need not take any further action pending contact from the attorney constituted excusable neglect, supporting vacation of default judgment upon submission of proposed answer demonstrating a meritorious defense.”
Weeks Cartage, Inc. v. CSX Transp., 547 So.2d 237 (Fla. 1st DCA 1989)

“While attorney’s error or error of his staff which results in failure to timely file responsive pleading may constitute excusable neglect, an attorney’s inadvertent failure to respond to complaint without more ?? (request for more time) does not constitute excusable neglect.”
“Allegations that attorney did not file responsive pleading because complaint was complicated and time insufficient did not constitute excusable neglect so as to warrant setting aside of default.”
DeRuyter v. State, 521 So.2d 135 (Fla. 5th DCA 1988)

“Defendants’ failure to respond to complaint constituted excusable neglect that warranted vacatur of default entered against them; defendants’ attorney abandoned his clients without notice and vacated his office, and thus service upon attorney at his vacated office and at some California address could not be considered notice to his abandoned clients.”
Yusem v. Butler, 683 So.2d 1170 (Fla. 4th DCA 1996)


“Parties are chargeable with mistake or neglect on their counsel’s part with respect to failing to appear for trial.”
Holt Industries, Inc. v. Airtronics Intern. Corp., 139 So.2d 731 (Fla. 3rd DCA 1962)

 “Excusable neglect such as to justify a setting aside default judgment was not shown where defendant’s attorney inexplicably failed to take action after receiving complaint from client and where defendants waited some seven weeks before attempting to vacate default judgment.”
Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978)

“Appellants’ counsel’s interpretation of Rule of Civil Procedure governing defaults entered by court that notice of hearing in regard to motion for default would be forthcoming and that such notice would set “the absolute deadline” for action taken by appellants was not good cause for its failure to file any responsive pleadings or motions as would support motion to vacate entry of default on grounds of mistake and excusable neglect.”
Fierro v. Lewis, 388 So.2d 1361 (Fla. 5th DCA 1980)

“Default will not be set aside where defaulted party or his attorney simply forgot or intentionally ignored necessity to take appropriate action, that is, where the conduct would reasonably be characterized as partaking of gross negligence or as constituting willful and intentional refusal to act.”
Somero v. Hendry General Hosp., 467 So.2d 1103 (Fla. 4th DCA 1985), petition for review denied Hayslip v. Somero, 476 So.2d 674.

“Erroneous advice of counsel which led defendants to fail to take action to file post-trial motions or appeal default judgment did not establish ground of excusable neglect.”
Rutshaw v. Arakas, 549 So.2d 769 (Fla. 3rd DCA 1989)

“Although court has authority to discipline counsel for failure to comply with Rules of Civil Procedure, ordinarily any punishment should be imposed upon attorney and not litigant.”
Wilson v. Woodward, 602 So.2d 547 (Fla. 2nd DCA 1992)
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CrzyAmeriCan
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« Reply #6 on: September 05, 2006, 01:59:28 PM »

In regards to the lost instrument....

Here is a link to Staff senate analysis that discusses a bill

http://www.leg.state.fl.us/data/session/2004/Senate/bills/analysis/pdf/2004s0282.ju.pdf#search=%22F.S.%20673.3091(2)%22

The bill covers amending chapter 673 of the FS so that a person trying to enforce a lost or destroyed instrument no longer has to be in possession they do have to prove they are entitled though.

Where would I find if that bill passed?

Sorry link doesnt work. Just copy and paste  Smiley
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« Reply #7 on: September 05, 2006, 02:07:16 PM »

Never mind I found this.


Once again copy and paste

http://election.dos.state.fl.us/laws/04laws/ch_2004-003.pdf#search=%22F.S.%20673.3091(2)%22
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« Reply #8 on: September 05, 2006, 05:49:03 PM »

2006 Florida Statutes

673.3091  Enforcement of lost, destroyed, or stolen instrument.--

(1)  A person not in possession of an instrument is entitled to enforce the instrument if:

(a)  The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;

(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and

(c)  The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

(2)  A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, s. 673.3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

History.--s. 2, ch. 92-82; s. 1, ch. 2004-3.
 
 
This is for reestablishment of negotiable instruments. Credit card agreements aren't negotiable instruments let alone written instruments given the style of the documentation deliberately authored by the credit card issuers.

The defense of lack of proof of protection against another claim is weakened in that it used to be the burden of proof of the person seeking to reestablish, whereas now it is a just defined as a finding of the court.

The same defenses as to proof of the terms of the instrument remain, which require a competent witness as to the terms.

Also, the loss of possession would be the result of transfer in JDB type cases.
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« Reply #9 on: September 05, 2006, 06:48:24 PM »

Carlsen & Co. v. Feldman, 677 So.2d 970 (Fla. 3rd DCA 1996)
“Statute providing for reestablishment of lost contracts did not require that judgment be entered and recorded for reestablishment of lost document as condition precedent to action for enforcement or breach of lost document; parties could seek reestablishment and enforcement of lost documents in same lawsuit.” F.S.A. 71.011(4)

Klein v. Frank, 534 F.2d 1104 (C.A. 5, 1976)
”If the party relying on a writing can prove that a writing existed and has been lost or destroyed, he is relieved of the burden of producing the original and can present secondary evidence of its contents.” Federal Rules of Evidence, rule 1004, 28 U.S.C.A.


Nahmod v. Nelson, 3 So.2d 162 (Fla. 1941)
“Secondary evidence is admissible to prove contents of a lost writing where proper predicate is laid and where such evidence is otherwise competent and admissible.”


Staiger v. Greb, 97 So.2d 494 (Fla. 3rd DCA 1957)
Courts of inferior jurisdiction do not have jurisdiction to entertain suits to re-establish lost negotiable instruments and courts of law do not have an inherent power to re-establish such papers not already a part of their records.”

State ex. rel. Broward v. Edmunds, 153 So. 850 (Fla. 1934)
“Equity courts may re-establish lost papers other than their own records, where moving party shows right to relief sought in equity.”
“County judge is unauthorized to re-establish alleged lost or destroyed will that has never been made record in his office.”

What does Staiger and Broward mean:
If “negotiable instrument”: only Circuit Court action, not county.
If court of law, can’t reestablish papers not already in court records.
Therefore, only equity action under 71.011(5) in county court, for county court action, on reestablishment of allege credit card related documents.
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« Reply #10 on: December 08, 2006, 12:22:15 PM »

Abbate v. Provident National Bank, 631 So.2d 312 (Fla. 5th DCA 1994)
Court’s subject matter jurisdiction is perfected by proper service of sufficient process.
Statutes (F.S. 48) governing service of process are to be strictly construed to insure that defendant receives notice of proceedings.
Burden of proving validity of service of process is on plaintiff.
Absent strict compliance with statutes governing service of process, court lacks subject personal jurisdiction over defendant.
F.S.48.011 et seq.

2.
Barwick v. Rouse, 53 Fla. 643, 43 So. 753 (1907)
The statutory provision as to service of process, that when some other person than the party be served such person shall be “informed of the contents” of the writ, should be given effect.
Where the sherriff’s return is fatally defective, and no attempt is made to correct that return, a default and final judgment thereon will be reversed.

3.
Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So.2d 558 (Fla. 3rd DCA 1981)
Where service of process upon person at defendant’s place of abode was made without informing that person of their contents, service did not constitute compliance with statute providing for such service, and therefore, trial court properly ser aside default judgment entered against defendant. §48.031(1), Florida Statutes.

4.
Nationwide Financial Corp. of Colorado v. Thompson, 400 So.2d 559 (Fla. 1st DCA 1981)
Homestead 158, 167, 93
Where defendant’s wife and minor child still occupied residence during period of time that defendant retained his ownership interest in the property after he moved out and resided in an apartment, defendant had not “abandoned”, the property, and thus plaintiff’s lien did not attach to property when it allegedly ceased to become homestead property upon abandonment.
Plaintiff’s lien did not attach when property was transferred to defendant’s children pursuant to final judgment of dissolution, where property had attained its homestead status before plaintiff’s judgment was entered and recorded, and thus there was no basis for enforcing lien against the defendant’s children.
Material time for determining the priority of the lien over claim of homestead exemption is the time the lien would have attached if homestead exemption were not applicable.

5.
Green Solutions Intl., Inc. v. Gilligan, 807 So.2d 693 (Fla. 5th DCA 2002)
Judgment 120, 123(1)
Once “any paper” has been served by party against whom default is entered, default judgment rule requires that proper notice of the application for default be given the opposing party and the court, not the clerk, enter any default. Rule 1.500(b), Fla.R.Civ.P.
Judgment 143(2), 145(2), 153(1)
Where default is void, it is unnecessary for party against whom default was entered to demonstrate the existence of a meritorious defense, excusable neglect, and due diligence in moving to set aside the default.

“Under these circumstances, the default entered by the clerk of the court was void.”

6.
Bowman v. Kingland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983)
Appearance 6
Filing of “notice of appearance” is not responsive pleading and is no substitute for answer or motion; it is obsolete practice and its function is to delay or prevent entry of default. Rule 1.100, Fla.R.Civ.P.
Judgment 112
Default admits every cause of action that is sufficiently well-pled to properly invoke jurisdiction of court and to give due process notice to party against whom relief is sought.
Default judgment admits plaintiff’s entitlement to liquidated damages due under pleaded cause of action but not unliquidated damages.
Damages are liquidated when proper amount to be awarded can be determined with exactness from cause of action as pleaded, i.e., from pleaded agreement between the parties, by arithmetical calculation or by application of definite rules of law.
Damages are not liquidated if their ascertainment requires taking of testimony to ascertain facts upon which to base a value judgment and thus, since reasonableness of attorney fee or other charge for services cannot be ascertained without presentation of facts, every claim of damages for reasonable value of services is unliquidated.
Constitutional Law 315
Defaulting party has due process entitlement to notice and opportunity to be heard as to presentation and evaluation of evidence necessary to judicial determination of amount of liquidated damages, including item of damages for reasonable attorney fee.
Rules 1.080(h)(1), 1.440(c ), U.S.C.A. Const.Amends 5, 14.
Judgment 138(3)
Judicial error in entering judgment without requiring or providing notice to defaulting party and opportunity to be heard as to presentation and evaluation of evidence necessary to judicial determination of amount of unliquidated damages is not remediable solely by appeal; relief from such a judgment can also be obtained by motion to set aside judgment or by independent action. Rule 1.540, Fla.R.Civ.P.
Judgment 133
Any error in not giving notice required by due process and rule and opportunity to be heard as to presentation and evaluation of evidence necessary to judicial determination of reasonable attorney fees, an item of unliquidated damages, related only to attorney fees and did not make whole judgment entered in action on note voidable.
Rules 1.440(c), 1.540(b)(1).
Bills and Notes 529
Since every negotiable instrument must be unconditional promise or order to pay sum certain in money, actions for sums directly due on negotiable instruments are by definition actions for liquidated damages. §§673.104(1)(b), 673.105, Fla. Stat.
Costs 172, Damages 71
When entitlement to attorney fees is based on contractual provision, they are recovered not as taxable costs but as element of damages in action on contract and accordingly item of damages for reasonable attorney fee is not liquidated.

----------------------------------Case Holding notes-------------------------------------
Element of damages is not ancillary to subject matter cause regardless of how straightforward and ministerial the calculation of those damages may be.
The determination of prejudgment interest is directly related to the cause at issue and is not incidental to the main adjudication.
McGurn v. Scott, 596 So.2d 1042, 1044 (Fla. 1992)

Creditor who sues for delinquent installments under monthly installment note instead of accelerating entire debt is entitled to interest at contract rate, or at legal rate if contract is silent, from the date of individual defaults to date of judgment for delinquent installments.
Reilly v. Barrera, 620 So.2d 1116 (Fla. 5th DCA 1993)
------------------------------------------------------------------------------------------------

7.
Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So.2d 744 (Fla. 4th DCA 1974)
Judgment 131
Where defendant had served a motion by mailing a copy to plaintiff’s counsel and mailing the original to the clerk of court for filing, clerk erred in entering a default judgment the next day pursuant to motion of plaintiff against defendant for default for failure to serve any responsive pleading within time permitted by law, although judgment was entered almost two hours prior to filing of the original motion of defendant; likewise the entry of final judgment of foreclosure based on default judgment was erroneous.
Rule 1.500(a), Fla.R.Civ.P.
Judgment 145(2)
Where default was erroneously entered by clerk at a time defendant has served a paper in cause, it was not necessary that motion to vacate default and final judgment entered thereon assert that defendant has a meritorious defense to suit, and on the timely application by defendant the default and any final judgment consequent thereon should be set aside.  Rules 1.500(a, b), Fla.R.Civ.P.


8.
Turner v. Allen, 389 So.2d 686 (Fla. 5th DCA 1980)
Judgment 106(1)
Default entered by clerk under rule authorizing entry of default against a party who has failed to file or serve any paper in the action and entered after defendant had served and filed a motion to dismiss in response to original complaint and a stipulation for withdrawal of counsel was erroneous. Rule 1.500(a), Fla.R.Civ.P.
Judgment 143(2)
It is not necessary for a party seeking to set aside a default entered by clerk contrary to rule authorizing such entry for failure to file or serve any paper in the action to assert excusable neglect or existence of a meritorious defense. Rule 1.500(a), Fla.R.Civ.P.
Judgment 113
Even if default had been entered against defendant, he was entitled to receive notice of order setting a hearing on damages prior to entry of a final judgment because the claim involved unliquidated damages.

(Liberality means allowing the david’s the research time that they need to be properly heard)
 
9
Picchi v. Barnett Bank, 521 So.2d 1090 (Fla. 1988)
Judgment 123(1)
Notice of motion for default must be issued when notice of appearance had been filed, but filing of notice of appearance (dilatory tactic paper) does not require notice of hearing on motion to default.
Judgment 138(1)
Although entry by attorney of notice of appearance for purposes of delay without filing answer to complaint would normally warrant entry of default against client, client was entitled to have default vacated given fact that district court below permitted practice in past and application of rule retroactively within that district would be unfair to client.

Petitioner Picchi filed and served a motion for default in accordance with 1.500(b) (court) on a mere notice of appearance (used as dilatory practice in 4th District).
Barnett Bank appealed default and District court set aside default holding that a notice of hearing on the motion for default was necessary.

Distinction between the notice of appearance dilatory tactic paper, and the occurance of appearance from the filing of a substantive court paper.

10.
Carr v. Butler, 590 So.2d 508 (Fla. 4th DCA 1991)
Judgment 106(1)
Clerk’s default was inappropriate, even though defaulted party did not timely file pleading responsive to cross claim upon which default was entered, as party had previously filed several documents in case. Rule 1.500(a), Fla.R.Civ.P.
Judgment 143(3), 145(1), 153(1)
Party against whom default judgment had been rendered by court, following clerk’s entry of default, was entitled to relief, having acted with due diligence upon learning of default, having demonstrated excusable neglect, and having alleged meritorious defense.


Furthermore, the record before us is totally void of any notice being provided to Maranto (Maranto v. Dearborn, 687 So.2d 940 (Fla. 3rd DCA 1997)) of any application for the default final judgment.
Rule 1.500(b) mandates that when a party against whom affirmative relief is sought has appeared in the action by filing or serving papers, no default may be entered against such party without prior notice of the application of default. Yellow Jacket Marina, Inc. v. Paletti, 670 So.2d 170, 171 (Fla. 1st DCA 1996); Powers v. Gentile, 662 So.2d 374, 375 (Fla. 5th DCA 1995)
Any default entered against in violation of the due process notice requirement of Rule 1.500 must be set aside without any regard as to whether a meritorious defense is presented or excusable neglect is established, Yellow Jacket Marina, Inc., 670 So.2d at 171; see also Hyman v. Canter, 389 So.2d 322 (Fla. 3rd DCA 1980)
Put another way, the “failure to produce proof of service of the required notice of application for default renders the entry of a default judgment erroneous.” Clearvalle, Inc., 561 So.2d at 1354 (citations omitted)


RULE 1.500. DEFAULTS AND FINAL JUDGMENTS THEREON
(a) By the Clerk. 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.
(b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, that party shall be served with notice of the application for default.
(court may enter a default: court decides on the necessity for a hearing?)

(c) Right to Plead. A party may plead or otherwise defend at any time before default is entered. If a party in default files any paper after the default is entered, the clerk shall notify the party of the entry of the default. The clerk shall make an entry on the progress docket showing the notification.
(d) Setting aside Default. The court may set aside a default, and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with rule 1.540(b).
(e) Final Judgment. Final judgments after default may be entered by the court at any time, but no judgment may be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other representative who has appeared in it or unless the court has made an order under
rule 1.210(b) providing that no representative is necessary for the infant or incompetent. If it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter to enable the court to enter judgment or to effectuate it, the court may receive affidavits, make references, or conduct hearings as it deems necessary and shall accord a right of trial by jury to the parties when required by the Constitution or any statute.
Court Commentary
1984 Amendment. Subdivision (c) is amended to change the method by which the clerk handles papers filed after a default is entered. Instead of returning the papers to the party in default, the clerk will now be required to file them and merely notify the party that a default has been entered. The party can then take whatever action the party believes is appropriate.
This is to enable the court to judge the effect, if any, of the filing of any paper upon the default and the propriety of entering final judgment without notice to the party against whom the default was entered.


11.
International Energy Corp. v. Hackett, 687 So.2d 941 (Fla. 3rd DCA 1997)
Judgment 123(1)
When party against whom affirmative relief is sought has appeared in action by filing or serving any papers, no default may be entered against such party without prior notice of application for default. Rule 1.500(b), Fla.R.Civ.P.

(Court must enter the default for a notice of application for default and possible hearing on the motion?)

Judgment 143(2), 144
Any default entered in violation of rule of civil procedure’s due process notice requirement must be set aside without any regard to whether a meritorious defense is presented or excusable neglect is established. Rule 1.500(b), Fla.R.Civ.P.
Judgment 123(1)
Trial court’s Uniform Order, stating that any noncompliance might result in imposition of sanctions, including dismissal, did not satisfy notice requirement necessary for entry of default judgment; even if order had specifically listed default as possible sanction for noncompliance, notice and opportunity to be heard still had to be given to defaulting party for determination of whether noncompliance was willful or bad faith. Rule 1.500(b), Fla.R.Civ.P.

 12.
Maranto v. Dearborn, 687 So.2d 940 (Fla. 3rd DCA 1997)
Judgment 126(1)
Trial court abused its discretion in entering default final judgment, even assuming defendant received actual notice and failed to appear, where default judgment was entered without plaintiff providing any proof of his claim on contested issues in pleadings.
Judgment 123(1)
Plaintiff’s failure to produce proof of any notice being provided to defendant of plaintiff’s application for default final judgment rendered entry of default judgment erroneous. Rule 1.500(b), Fla.R.Civ.P.

Default entered because defendant failed to appear at calendar call and trial.

--------------------------------------------------------
Fierro v. Lewis, 388 So.2d 1361 (Fla. 5th DCA 1980)
1.500(b) only requires that copy of application for default be served.

13.
Fierro v. Lewis, 388 So.2d 1361 (Fla. 5th DCA 1980)
Judgment 123(1)
Rule of Civil Procedure governing defaults entered by the court does not require noticed hearing for entry of order of default against party who has failed to plead or otherwise defend; it requires only that copy of application for default be served upon party who has filed or served paper in action. Rule 1.500(b), Fla.R.,Civ.P.
Judgment 143(10)
Appellants’ counsel interpretation of Rules of Civil Procedure governing defaults entered by court that notice of hearing in regard to motion for default would be forthcoming and that such notice would set “the absolute deadline” for action taken by appellants was not good cause for its failure to file any responsive pleadings or motions as would support motion to vacate entry of default on grounds of mistake and excusable neglect. Rule 1.500(b), Fla.R.,Civ.P.

The issue presented by this appeal is whether or not a noticed hearing is required for the entry of an order of default against a party who has filed a notice of appearance.
The appellants did not file any responsive pleadings or motions.
Appellants received notice of the application for default but waited on the expected notice of hearing.
Final judgment thereupon an unnoticed hearing.
Appellants sought relief from judgment on mistake.

14. Carson v. Rossignol, 559 So.2d 433 (Fla. 4th DCA 1990)
Judgment 108
Clerk of court improperly entered default judgment, where motion to quash had been filed before entry of default.
Judgment 113
Upon filing motion to quash service of process, movant was entitled to notice of application for default.
Judgment 139
Trial court abused its discretion in refusing to vacate default, where motion to quash service of process had been filed and no notice was given to movant as to entry of default.

The motion to quash was still pending.

15.
Kroier v. Kroier, 116 So. 753 (Fla. 1928)
Certiorari 16
Certiorari cannot be used to quash inferior court’s judgment unless it is of final nature.
        Writ of certiorari may not be used to quash a judgment of an inferior court unless such judgment be of a final nature.
Certiorari 17
Certiorari lies to review and quash order setting aside default judgment entered over year before, on showing that court had not jurisdiction to make vacating order.
          Writ of certiorari may be resorted to for the purpose of reviewing and quashing an order of court made on defendant’s motion more than a year subsequently to the entering of a default and final judgment, vacating and setting aside such former judgment and depriving the plaintiff of the benefit of an execution and writ of garnishment issued thereunder, where it appears that the court was without jurisdiction to make such vacating order.

Judgment 346, 486(1)
Entirely void judgment may be set aside on motion after expiration of term; entirely void judgment may be collaterally assailed.
           It is equally well settled that a judgment which is entirely void may be set aside on motion after the expiration of the term, and may even be collaterally assailed.


Judgment 342(1)
Ordinarily, unless judgment voidable only because irregular or erroneous is moved against during term, or within statutory period, by motion to vacate or proper appellate proceedings, it becomes absolute and passes beyond court’s control.
        A judgment which is voidable only, because irregular or erroneous, must ordinarily be moved against during the term or within the period fixed by statute, by motion to vacate or by proper appellate proceedings; otherwise, it becomes absolute and passes beyond control of the courts.
Judgment 131, 271
Statutory authority of clerks of circuit courts as to entering defaults and final judgments in certain cases must be strictly construed.
     The authority conferred upon clerks of the circuit courts by … pertaining to entering defaults and final judgments in certain cases, is purely statutory and must be strictly construed.
Judgment 141
Default or final judgment, entered by circuit court clerk on appearance day, in presence of defendant’s appearance duly filed, is void, and may be vacated and set aside on motion, although statutory period for opening defaults has elapsed; statute limiting time for opening default judgments does not apply to defaults or judgments entered does not apply to defaults or judgments entered does not apply to defaults or judgments entered by circuit court clerk contrary to law.
       Circuit court clerks have no authority, on appearance day in a suit at law and in the presence of an appearance duly filed by the defendant, to enter either a judgment by default or a final default, and judgments so entered are null and void and may be vacated and set aside by the court on motion, although the 60-day period allowed by section 2621, Revised General Statutes 1920, for opening defaults has elapsed, as such statute does not apply to defaults or judgments entered by the clerk without legal authority and in violation of law.
Judgment 497(1)
If court records show facts conferring jurisdiction or judgment’s recitals show jurisdiction attached, it’s averments are final and conclusive in collateral proceedings.
   If the court records show the facts necessary to confer jurisdiction or the recitals in the judgment show that jurisdiction did in fact attach, its averments are final and conclusive in collateral proceedings, and cannot be contradicted by extraneous or parol evidence.
Evidence 386(4), 387(1)
Extrinsic evidence is inadmissible to contradict court records showing jurisdiction; party may show one part of record contradicts another explicitly and irreconcilably.
   While it is inadmissible to contradict the court record showing jurisdiction by extrinsic evidence, it is open to a party to show that one part of the record contradicts another part, explicitly and irreconcilably.
Judgment 572(2)
Generally, judgment sustaining demurrer for omission of material allegation from plaintiff’s pleading does not prevent new suit for same cause in which plaintiff’s pleading supplies missing averments.
   As a general rule, where a demurrer is sustained because of the omission of a material allegation from the plaintiff’s pleading, the judgment sustaining the demurrer will not prevent the maintenance of a new suit on the same cause of action in which the plaintiff’s pleading supplies the missing element.
Judgment 572(2)
Decree sustaining demurrer to bill seeking to impeach default judgment by parol evidence that defendant had final appearance held not res judicata as to subsequent motion to vacate same judgment because clerk had filed appearance.
   A decree sustaining a demurrer to a bill seeking to impeach a default judgment by parol evidence tending to show that the defendant had filed an appearance is not res judicata as to a motion subsequently made to vacate the same judgment on the ground that the clerk had accepted the appearance for filing, had filed it and indorsed his file mark thereon, and that such appearance was on file and a part of the court’s records at the time the clerk inadvertently entered such default for want of appearance.
Judgment 386(1)
Delay in moving to vacate judgment, so long as party had no notice thereof and rights of innocent third parties did not intervene, will not usually bar relief.
   Delay in moving to have a judgment vacated, so long as the party had no notice of the judgment and no rights of innocent third parties have intervened, will not usually bar his right to the relief prayed for.
Judgment 349, 386(2)
Ordinarily, lapse of time does not affect right to vacate judgment for lack of court’s jurisdiction; if party knows judgment, which was merely voidable, was rendered against him, unexcused laches or delay generally precludes him from having it vacated.
   Ordinarily, lapse of time will not affect the right to vacate a judgment on the ground that the court never had the jurisdiction to enter it. But if a party actually knows that a judgment has been rendered against him, and the judgment is not simply void but merely voidable, it is the rule that he must exercise reasonable diligence in procuring its vacation, and unexcused laches or delay will generally preclude him from obtaining the relief sought.
Judgment 386(3)
Judgment absolutely void can generally be set aside and stricken from record on motion at any time.
   A judgment that is absolutely null and void can, as a general rule, be set aside and stricken from the record on motion at any time.
 

 
(A PLEADING-BASED APPEARANCE NEGATES THE CLERK’S STATUTORY AUTHORITY TO ENTER DEFAULTS and any judgment under those circumstances is void.)  

16
Lopez v. Suarez, 773 So.2d 572 (Fla. 3rd DCA 2000)
Judgment 106(1)
Affidavit of defendant’s daughter, filed for purpose of challenging service of process, constituted a “paper” for purposes of avoiding default judgment. Rule 1.500(a), Fla.R.Civ.P.
Process 158
Ruling on motion to quash/strike service and service of process could not be based on unauthenticated driver’s license application and statements made by plaintiff’s attorneys.
§48.031(1)(a), Fla. Stat.

17.
Cardet v. Resolution Trust Corp., 563 So.2d 167 (Fla. 3rd DCA 1990)
Judgment 123(1)
Once litigant has appeared and is actively defending main claim, he or she is entitled to notice of all hearings, including hearings on motion for default, whether on main claim or cross-claim. Rule 1.500(b), Fla.R.Civ.P.
Lots of good case cites within.

18.
Monte Campbell Crane Co., Inc. v. Hancock, 510 So.2d 1104 (Fla. 4th DCA 1987)
Appeal and Error 296
Party did not waive issue of whether default should have been vacated based on lack of notice, though issue was not raised at initial hearing to set default aside but only at subsequent proceeding following party’s unauthorized motion for rehearing. Rule 1.500(d), Fla.R.Civ.P.
(Appeal was taken from nonfinal order (motion to set aside default not default final judgment) of the Circuit Court, Broward County, denying party’s motion to set aside default and denying rehearing on motion. DCA held that party did not waive issue of whether default should have been vacated based on lack of notice.)
Judgment 92
Object of entry of default is not to give plaintiff advantage by relieving him from having to prove merits of claim, but to speed cause by preventing defendant’s procrastination.




 19
Reichenbach v. Southeast Bank, 462 So.2d 611 (Fla. 3rd DCA 1985)
Judgment 123(1)
Any paper served prior to entry of default triggers requirement that party against whom default is sought be served with notice of application for default. Rules 1.500(b, c), Fla.R.Civ.P.
Judgment 123(1)
Where letter confirming bank’s agreement to extension of time was served upon bank within time agreed upon by bank, letter served fulfilled requirements of rule requiring that when paper is served prior to entry of default, party against whom default is sought must be served with notice of application for default and therefore, mortgagor was entitled to notice of application for default.  Rule 1.500(b)
Judgment 144
Although mortgagor failed to demonstrate meritorious defense in support of motion to vacate mortgage foreclosure, erroneous entry of default entitled him to relief from default judgment.

20
Somero v. Hendry General Hospital, 467 So.2d 1103 (Fla. 4th DCA 1985)
Judgment 135
Florida jurisprudence favors liberality in the area of setting aside defaults in order that parties may have their controversies decided on the merits.
Judgment 143(3, 10)
Default will not be set aside where defaulted party or his attorney simply forgot or intentionally ignored necessity to take appropriate action, that is, where the conduct would reasonably be characterized as partaking of gross negligence or as constituting willful and intentional refusal to act.
Judgment 143(3), 153(1)
Where inaction leading to default results from clerical or secretarial error, reasonable misunderstanding, system gone awry or any other foibles to which human nature is heir, then upon timely application  accompanied by reasonable and credible explanation, the matter should be permitted to be heard on the merits.
Pretrial Procedure 696
Trial court abused its discretion in denying motion to set aside order of dismissal of action for failure to timely seek substitution of deceased defendant’s personal representative as party in the case, where, inter alia, plaintiff’s counsel proceeded under the assumption that substitution would be handled by stipulation, even though counsel took no further steps to effect the substitution. Rule 1.540(b)

21
Hall v. Byington, 421 So.2d 817 (Fla. 4th DCA 1982)
Judgment 143(2)
In order to vacate default judgment, it was incumbent on defendant to establish both excusable neglect by her lawyer and meritorious defense to the complaint.
Judgment 185(4)
Excusable neglect, for purposes of vacating default judgment, must be established by sworn pleading which states a legal excuse for failure to comply with the rules of procedure or by testimony under the rules of procedure or by testimony under oath in support of an unsworn motion.
Judgment 160, 161
Meritorious defense, for purpose of vacating default judgment, must be established by ultimate facts alleged most appropriately in a proposed answer, but may also be done by affidavit.
Judgment 159
Although a lawyer’s failure to note date properly on his calendar has been recognized as excusable neglect, for purposes of vacating default judgment, motion to vacate on ground of placing incorrect date was insufficient because it was qualified, not positive, in that lawyer’s oath asserted only that allegation were “true and correct to the best of his knowledge and belief.”

22.
Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974)  
Judgment 158
Unsupported and unverified motion signed by counsel for foreign liability insurer in personal injury case was insufficient to warrant setting aside of default. Rule 1.500(d).
Pleading 1
Pleading are merely tentative outline of position which pleader takes before case is fully developed on facts through discovery and evidence.
Pleading 288
Signature of attorney on pleading does not import truthfulness of facts therein recited. Rule 1.030.
Pleading 374
Pleading does not as such entitle pleader to relief; if affirmative relief is desired it is necessary that proof be adduced.

23.
Perry v. University Cabs. Inc., 344 So.2d 914 (Fla. 3rd DCA 1977)
Judgment 145(2)
To entitle defendant to have default set aside, in addition to showing excusable neglect, it is incumbent upon defendant to show it has meritorious defense.
Judgment 158
Mere statement in unsworn motion to set aside default to effect that defendant had meritorious defense was not sufficient showing of such defense.
Judgment 160
Existence of meritorious defense required for setting aside default should be disclosed in defensive pleading showing the defense, or in sworn motion or affidavit stating facts which if proved would be meritorious defense, where factual defense is relied on, or by showing legal grounds constituting meritorious defense, where legal rather than factual defense is to be relied on.

24.
McIntosh v. Wibbleler, 106 So.2d 195 (Fla. 1958)
Process 145
On issue of validity of sheriff’s return showing personal service upon defendant, burden was upon the defendant to substantiate her claim that return was false, and upon the trial court to weigh and resolve any conflict in evidence.
Process 79
Where defendant resided alone with a servant and without any member of her family in the household, service of process could have been effected only by a delivery to her in person.
Judgment 138(3)
Where there is no service of process sufficient to sustain the jurisdiction of the court, mere negligence or lack of diligence on part of party at a later stage of the proceedings cannot correct the fault nor can the lapse of the appeal period validate a judgment as against a defendant’s motion to vacate the default on the ground of lack of personal service of process.
Judgment 162(4)
Evidence established that sheriff’s return showing personal service of process upon defendants was false and hence, default judgment based thereon must be set aside.

25.
Finesmith v. Singer, 216 So.2d 39 (Fla. 3rd DCA 1968)
Assignments 103
Rule that an assignee occupies same position as his assignor is subject to qualification that equitable principles, such as estoppel, may be applied to alleviate rule’s harsh operation.
See 6 AmJur2d, Assignments, § 103.
Estoppel 52
Whether an estoppel exists depends upon circumstances of the case.
Assignments 103
Although defendant’s interest in land trust was forfeited to plaintiffs as consequence of fraud he perpetrated upon them, plaintiffs were estopped from questioning validity
of assignment of part of defendant’s interest to intervenor where plaintiff’s interest to intervenor where plaintiffs had recognized intervenor’s interest in land trust and intervenor had no knowledge of defendant’s fraud or any taint upon interest assigned him.

26
Florida Bar v. Porter, 684 So.2d 810 (Fla. 1996)
Attorney and Client 48
Attorney was properly served with notice of attorney disciplinary proceedings, where State Bar mailed disciplinary complaint by certified mail to attorney’s last registered Bar address, attorney admitted that he spoke to counsel from the Bar, who notified him that complaint was pending against him, and notice of default was thereafter sent to attorney’s mailing address, but he failed to retrieve it; court would not endorse attorney’s knowing decision to ignore his mail.
Attorney and Client 56
Referee was empowered to enter default against attorney, who failed to plead or defend attorney disciplinary action, and, by this default, allegations in State Bar’s complaint were deemed admitted, and default thereby provided referee with competent, substantial evidence upon which to base findings of misconduct, and precluded attorney from complaining on appeal about any factual findings deemed admitted.  Rule 1.500(b)
Attorney and Client 57
In attorney discipline proceedings, referee’s findings of fact are presumed correct unless clearly lacking in evidentiary support.
Attorney and Client 57
If referee’s findings in attorney disciplinary proceedings are supported by competent, substantial evidence, then Supreme Court is precluded from reweighing evidence and substituting its judgment for that of referee.
Judgment 111, 113
Under civil procedure rules, entry of default precludes party from contesting existence of plaintiff’s claim and liability thereon, and thereafter, party has right to contest damages caused by the party’s wrong but no other issue. Rule 1.500(b)
(By this default, the allegations in the Bar’s complaint were deemed admitted, and the default thereby provided the referee with competent, substantial evidence upon which to base the findings.) (failure to respond to request for admissions means matters are deemed admitted.)

27
Dade County v. Lambert, 334 So.2d 844 (Fla. 3rd DCA 1976)
Judgment 113
5. Where there was no showing that defendant had filed or served any paper in the action, default could be entered against him without any notice. Rule 1.550(b)
6 Judgment 113
Where operator of county’s bus failed to file or serve any paper in action brought against him, so that default could be entered against the operator without any notice, the county was not entitled to any notice of the default judgment. Rule 1.500(b)
7 Judgment 98
Where county’s alleged liability was vicarious, based upon the alleged negligence of operator of bus in causing the injury to plaintiffs and where the county denied liability, the failure of the operator of the bus to plead, resulting in a default judgment against him, could not deprive the county of its right to have a jury determination of its defense, notwithstanding fact that such defense would be common to the operator of the bus.
8 Judgment 112
The default of one defendant, although an admission by him of the allegations of the complaint, does not operate as an admission of such allegations as against a contesting codefendant.
9 Courts 121(2)
The jurisdiction of the court is to be determined by the sum in good faith claimed or put into controversy when the action is commenced, and not by the amount of recovery.
10 Courts 487(1)
Where nothing in the record indicated that the demands of the plaintiffs against county and operator of bus were not made in good faith, it was not error to deny the motion of the county and the operator of the bus to transfer the cause from the circuit court to the county court.

28
Norris v. Southern Bell Tel. & Tel. Co., 324 So.2d 108 (Fla. 3rd DCA 1975)
1 Certiorari 17
Petition for certiorari was proper remedy for challenging order transferring personal injury action from circuit court to county court on ground that amount claimed in good faith did not reach jurisdiction limit of the circuit court.  §§ 26.012, 34.01, Fla. Stat.
2 Courts 121(2)
Rule to be applied in determining jurisdiction of a court as to the amount involved is the amount claimed in good faith.
3 Courts 486
Although there might be a basis for a belief that plaintiff exaggerated her claim in personal injury action order transferring action from circuit court to county court on ground that amount claimed in good faith did not reach jurisdictional limit of circuit court was improperly entered where it could not be said that such a conclusion appeared without issue; however, subsequent transfer was not precluded if later developments so warranted.  .  §§ 26.012, 34.01, Fla. Stat.

29
Kar Kare Owners Group of Florida, Ltd. v. Chason, 356 So.2d 851 (Fla. 4th DCA 1978)
1 Appeal and Error 82(3)
Order denying a motion to vacate a final (summary) judgment is a final appealable order.
2 Appeal and Error 70
Order denying a motion to vacate a default judgment is appealable as an interlocutory matter.
3 Appeal and Error 10
Plenary appeal, rather than petition for common-law certiorari, was appropriate remedy to review order denying motion to vacate summary final judgment.
4 Appeal and Error 14
Although review of order denying motion to vacate summary final judgment was improperly sought by way of petition for common-law certiorari, District Court of Appeal would disregard the technical defect and accept jurisdiction and would treat the matter as a full appeal.

5 Judgment 344
It was not abuse of discretion to deny motion to vacate summary final judgment, which motion was based on assertions that movant had changed his address and didn’t get his mail and that he didn’t know that counsel had been granted leave to withdraw, where opposing counsel’s representation that withdrawing counsel had informed the court that his clients had been informed of the motion to withdraw went unchallenged despite fact that the withdrawing attorney was present and testified and from beginning of litigation movant repeatedly failed to abide by the court’s procedures and rulings; movant was guilty of inexcusable neglect. Rule 1.540(b)
6 Judgment 677
Where on defendant replied to interrogatories addressed to all defendants, appeared on behalf of all defendants at hearing to set aside summary judgment and attorney for remaining defendants gave such defendant’s address as a place to serve all, it could not be said that such defendant did not have legal standing to bind codefendants for purposes of litigation, including entry of final summary judgment.

30
Bemis v. Lofton, 173 So. 683 (Fla. 1937)
1 Judgment 470
Court looks with disfavor on all collateral assaults on judicial proceedings, in order to preserve dignity of and respect for judgment.
2 Judgment 518
A “direct attack” on a judicial proceeding is an attempt to avoid it in some manner provided by law or that purpose, as by an objection founded on alleged judicial errors, when made in a proceeding authorized by law for avoiding or correcting judgment on account of such error.
3 Equity 430(3)
Direct attack on decree of court of chancery, when decree is valid on its face, must be brought before the court and in the jurisdiction where challenged decree was originally entered.
4 Judgment 518
A “collateral attack” on a judicial proceeding is an attempt to avoid, defeat, or evade a judicial proceeding by denying its force and effect in some manner not provided by law for that particular purpose, which will succeed only on showing a want of power in the tribunal whose proceedings are thus challenged, and includes any attempt to overturn or overhaul judicial proceedings by evidence outside the record, or a new suit to set aside a judgment valid on face of the record for causes not falling within the scope of an equitable bill in the nature of a bill of review.
5 Judgment 518
Suit in one county to set aside a decree annulling a marriage entered in another county, on grounds that decree was obtained by fraud on the court participated in by person seeking to set decree aside, and that no service of notice was had on defendant therein but defendant’s praecipe for appearance was unauthorized, held as collateral attack based on evidence outside the record, on a decree which was good on face of the record and, at most, voidable.
6 Judgment 497(2)
Court of general jurisdiction is conclusively presumed, by allowing an appearance, to have determined that the appearance was entered by one having lawful right so to do.
7 Courts 128
County circuit court is a domestic court of general jurisdiction.
8 Judgment 495(2), 499
Even where record of a court of general jurisdiction is silent as to service of notice on which judgment is based, service of notice is conclusively presumed as against collateral attack, and extrinsic evidence is inadmissible to show that there was no service.
9 Judgment 489
Decree annulling marriage, all proceedings leading up to which were regular on their face, held not void on collateral attack but at most voidable under direct attack, notwithstanding that decree was obtained by fraud on the court, and that no service of notice was had on defendant therein, but defendant’s praecipe for appearance was unauthorized.
10 Equity 430(1)
A voidable decree is secure against direct attack, even in court of its rendition, if person attacking it did not act in good faith, was not victim of surprise, fraud, or deceit, or participated in fraud by which colorable jurisdiction was shown, in absence of positive rule of law or public policy requiring that decree be rendered void ab initio.
11 Estoppel 91(1)
Wife who participated in fraudulent procurement of decree setting aside her own marriage, and in filing of unauthorized praecipe for appearance purporting to come from her, and who allowed former husband to remarry and herself lived with another man, held estopped to contest validity of annulment, forty years later and with purpose of claiming dower in former husband;s estate.
12 Equity 430(1)
When voidable decree of court of general jurisdiction is properly moved against and set aside by judicial action, especially where attack is on jurisdictional grounds, it becomes void ab initio.
If direct attack, a rule of law relied upon by appellant will control its determination.
If collateral attack, another and different rule will prevail.
[1] This is so because it is the duty of all courts in general to set their faces against all collateral assaults on judicial proceedings, not only because such attacks are frequently devoid of merit, but because the courts of justice should not allow themselves to be brought into dispute by having their forums looked upon by the citizenry as places where mere jugglery and smartness are substituted for justice toward innocent third parties who have become entitled to assume that acting at all, a court whose decree or judgment has been attacked, must necessarily have investigated and determined that it had jurisdiction of the subject-matter of the particular case decided; that by its process, lawful in form and lawfully served, it brought before it the particular parties against whom it undertook to give, and did give, judgment on the record pendent before it at time its decision was entered.
[4] A collateral attack on the other hand is an attempt to avoid, defeat, or evade a judicial proceeding by denying its force and effect in some manner not provided by law for that particular purpose.
Thus an objection founded on alleged judicial errors, when made in a proceeding authorized by law for avoiding or correcting such judgment on account of such errors, and which will succeed upon the showing of the error, is a direct attack,
while an attempt to do the same thing in any other proceeding, of whatsoever nature it may be, is a collateral attack that can only succeed upon showing a want of power in the tribunal whose judicial order, judgment, or decree is thus challenged.
Such direct attack can only be pursued within the time, and according to the manner, provided by law. Morrill v. Morrill, 20 Or. 96, 25 P. 362, 11 L.R.A. 155, 23 Am.St.Rep. 95.
And as all judicial records or orders, judgments, or decrees of judicial tribunals must have their validity tried by an inspection of the record upon which they were arrived at and are a part, any attempt to overturn or overhaul them by evidence dehors in a proceeding not provided by law for that particular purpose, is a collateral attack.
A new suit, even in the same court, to set aside a judgment valid on the face of the record of the proceedings, whether for fraud, accident, surprise, mistake, excusable neglect or other cause, not falling within the scope of an equitable bill of review, or an original bill in the nature of a bill of review, is therefore a collateral attack.
Harman v. Moore, 112 Ind. 221, 13 N.E. 718;
Newcomb’s Executors v. Newcomb, 13 Bush(Ky.) 544, 26 Am.Rep. 222; Delgado v. Chavez, 140 U.S. 586, 11 S.Ct. 874, 35 L.Ed. 578.


31
Whigham v. Whigham, 464 So.2d 674 (Fla. 5th DCA 1985)
1 Divorce 76
Although circuit court had subject matter jurisdiction to adjudicate property rights between parties in marital dissolution action and that jurisdiction was properly invoked by allegations in complaint, jurisdiction was not perfected as to adjudication of property rights, where service of process omitted description of property sought to be proceeded against and failed to give constitutional procedural due process notice that husband’s property rights were to be adjudicated. § 49.08(4)
2 Divorce 254 (1)
Where service of process in marital dissolution action was defective as to husband’s property rights, portion of final judgment awarding husband’s property rights to wife was null and void and did not transfer title of property to wife. § 49.08(4)
3 Judgment 386(3)
Motion for relief not brought within reasonable time does not have effect of making void judgment valid.  Rule 1.540(b).
“Void portion of dissolution judgment”
 
32
Henzel v. Noel, 598 So.2d 220 (Fla. 5th DCA 1992)
1 Process 64
Statutes governing service of process are to be strictly construed to insure that defendant is given notice of the proceedings. §§ 48.031, 48.031(1), 48.194.
2 Process 145
Party who seeks to invoke court’s jurisdiction has burden of proof on issue of validity of service of process.
Section 48.031(1), Fla.Stat. provides:
Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint … or by leaving the copies at his usual place of abode with any person residing therein who is fifteen years of age or older and informing the person of their contents.
These statutes are to be strictly construed to insure that the defendant is given notice of the proceedings. Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla. 1977)
The burden of proof is on the party seeking to invoke the jurisdiction of the court.
Carlini v. State Department of Legal Affairs, 521 So.2d 245 (Fla. 4th DCA 1988).
The parties agree that the summons and complaint were
neither delivered to Henzel personally nor left at his home with another resident.
It was clear that service of process did not requirements of section 48.031.
The deputy then identified herself, read the summons and complaint in a loud voice and attached the papers to the door.

33
Magazine v. Bedoya, 475 So.2d 1035 (Fla. 3rd DCA 1985)
1 Process 154
Presumption of valid service arises from evidence of return of service which is regular on its face.
2 Process 149
Party challenging service of process must overcome presumption of valid service by clear and convincing evidence.
3 Process 79
Defendant’s mother-in-law’s six-week stay at defendant’s residence was long enough that she could properly be regarded as a “person residing therein” under service of process statute. § 48.031(1).
[A presumption of valid service arises from evidence of a return of service which is regular on its face.
Klosenski v. Flaherty, 116 So.2d 767 (Fla. 1959) ]

34
Gulf Maintenance & Supply, Inc. v. Barnett Bank, 543 So.2d 813 (Fla. 1st DCA 1989)
1 Judgment 120
Entry of default is appropriate where defendant does not intend to appear and defend merits of action or engages in dilatory practices in bad faith solely for purposes of hindrance and delay. Rule 1.500.
2 Judgment 97
Default is not appropriate in cases where plaintiff knows the defendant is represented by counsel who intends to assert matters in defense of cause of action.  Rule 1.500
3 Judgment 113
Notice of application for default should always be served when plaintiff is aware that defendant is being represented by counsel who has expressed intention to defend on merits. Rule 1.500(b).
4 Judgment 113, 123(1)
Bank was required to serve attorney for borrower and guarantors with notice of application for default and present it to court for entry, rather than merely requesting that clerk enter default, where bank’s attorneys knew that borrower and guarantors were represented by attorney and intended to assert matters in defense of action; attorney for borrower and guarantors sent letter to bank’s attorney confirming telephone conversation regarding his representation of defendants and bank’s attorney’s agreement to extension of time for filing response to complaint. Rule 1.500(b)
5 Judgment 133
Default judgment rendered in favor of bank and against borrower and guarantors was void, where entry of default by clerk without notice to borrower and guarantors was invalid because bank’s attorneys knew that borrower and guarantors were represented by attorney and intended to assert matters in defense of action. Rule 1.500(a).
6 Judgment 133
In determining whether entry of default judgment is invalid due to failure of plaintiff to serve notice of application for default when any paper has been filed or served, whether paper served is facially sufficient to allege legal defense is not considered. Rule 1.500(b)
7 Judgment 113
Although mere filing of appearance solely as delaying tactic with no legitimate purpose is improper, notice of application for default is nevertheless required once such notice of appearance has been filed. Rule 1.500(b).
8 Judgment 113
Letter from bank to borrower and guarantors requesting that they file responsive pleading did not relieve bank’s counsel of duty to serve notice of its application for default. Rule 1.500(b).
9 Damages 194
Damages requested by bank against borrower and guarantor were not “liquidated,” and therefore, bank was required to serve order setting action for trial on default judgment upon borrower and guarantors; court had to receive, at final hearing, additional evidence as to amount of advances, repayments, and recovery from sale of security to enter final judgment. Rule 1.440(c).
[Id at 816. The default rule has been liberally construed in Florida to allow trial upon the merits where all parties appear rather than to encourage resolution of legal disputes by default. EGF Tampa Associates v. Edgar V. Bohlen, 532 So.2d 1318 (Fla. 2nd DCA 1988); Reichenbach v. Southeast Bank, N.A., 462 So.2d 611 (Fla. 3rd DCA 1985); See H. Trawick, Florida Practice and Procedure, § 25-2 (1985).]
[To carry out these purposes, rule 1.500(a) allows entry of a default by the clerk where no paper has been served by a defendant in an action. The underlying premise for this provision is the notion that failure to appear or otherwise respond to the complaint indicates that a defendant does not intend to contest the case. But rule 1.500(b) requires service of notice of an application for default when “any paper” has been filed or served in the action and requires the court, rather than the clerk, to enter a default in these circumstances. This provision is premised on the notion that such paper indicates an intention by the defendant to defend on the merits and that due process considerations require such notice if the plaintiff intends to proceed and hold the defendant within the time constraints in the rules of procedure.  
EGF Tampa Associates v. Edgar V. Bohlen, 532 So.2d 1318 (Fla. 2nd DCA 1988)
[Plaintiff’s counsel should contact the attorney known to be representing a defendant to determine whether the latter intends to proceed in the matter before causing a default to be entered. See H. Trawick, § 25.3.]
[9] Initially, we point out that rule 1.500(b) only requires service of the application for default; service of a notice of hearing on the application for default is not required.
Citing: Picchi v. Barnett Bank, 521so.2d 1091; Fierro v. Lewis, 388 So.2d 1361 (Fla. 5th DCA 1980). But rule 1.500(e) requires the court, after the proper entry of a default, to accord a right of trial by jury to the parties when required by statute or the constitution “if it is necessary to take an account or to establish the truth of any averment by evidence or to make an investigation of any other matter to enable the court to enter judgment.” Rule 1.440(c), similarly, requires. “In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080(a).”
In the instant case the damages proved by the Bank at final hearing and included in the final judgment were not the amount claimed in the complaint, were not stipulated to by the defendants, and could not be arrived at by mathematical calculation from anything attached to the complaint nor by application of definite rules of law. Rather, as conceded by the Bank at oral argument, the court had to receive additional evidence at the final hearing as to the amount of the advances, repayments, and recovery from the sale of security to enter the final judgment. Therefore, the damages requested by the motion for final judgment were not liquidated within the meaning of rule 1.440(c).
Lauxmont Farms, Inc. v. Flavin, 514 So.2d 1133 (Fla. 5th DCA 1987)
Buffington v. Torcise, 504 So.2d 490 (Fla. 3rd DCA 1987);
Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983);
Air Unlimited, Inc. v. Volare Air, inc., 428 So.2d 294 (Fla. 3rd DCA 1983)
Bowman: “damages are not liquidated if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment.”
by application of definite rules of law (interest rate must be specified in writing)

35
Malone v. Meres, 109 So. 677 (Fla. 1926)  Great SMJ case.
1 Judgment 386(3), 486(1), 576(1)
Judgment absolutely null and void, mere brutum fulmen, can be set aside and stricken from record on motion at any time, and may be collaterally assailed;
judgment voidable only because irregular or erroneous must be timely attacked by motion to vacate or by appeal, or it becomes absolute verity.
   A judgment that is absolutely (not portionally?) null and void, mere brutum fulmen, can be set aside and stricken from the record on motion at any time, and may be collaterally assailed, but a judgment that is voidable only because irregular or erroneous must be moved against in time by motion to vacate , or by resort to an appellate tribunal; otherwise, it becomes an absolute verity, and passes beyond the control of the courts to disturb.
2 Judgment 501
If court has jurisdiction, judgment is binding or decree is binding, even though erroneous because of irregular procedure, and will not be set aside, reversed, or modified, except on appeal.
   If the court has acquired jurisdiction of the subject-matter and of the parties, the judgment or decree entered is binding, even though erroneous because of irregularity of procedure; and such judgment or decree will not be set aside, reversed, or modified, except by appropriate direct appellate procedure.
3 Courts 39
Where court has general jurisdiction of civil actions at law and equity causes, and subject-matter is within court’s jurisdiction, whether relief sought should be by law action or suit in equity does not ordinarily involve power of court to determine matter.
   Where a court has general jurisdiction of civil actions at law and also of all equity causes, and the subject-matter of a suit or action and the relief sought are within the jurisdiction of the court, whether it be a contract right in personal property or title to real estate or other civil matter, the question whether the relief sought should be by action at law or by a suit in equity does not ordinarily involve the power of the court to determine the matter, but it is rather a matter of procedure, at least; where the right to a jury trial is not unlawfully denied.
4. Equity 430(2)
If equity suit is brought when law action is proper, and neither defendant nor court challenges right to proceed in equity, final decree either pro confesso or on contest, if erroneous, may not in general be vacated on motion after time for appeal.
   If a suit in equity is brought when an action at law is the proper remedy, and the defendant, if duly served or appears, does not duly challenge the plaintiff’s right to proceed in equity or waives the right, and the court does not, sua sponte, raise the question and dismiss the cause and a final decree is rendered, whether upon a decree pro confesso or upon a contest made, such decree, if erroneous, is not necessarily void; and, after the time within which the complaining party might have secured a review by appeal, such party is not in general entitled to have the decree vacated upon motion on the ground that it is null and void.
5 Equity 20
Courts of equity have general jurisdiction of power to enforce liens; decree of chancellor, having jurisdiction, erroneously holding that written instrument creates lien and enforcing lien, is not void for want of jurisdiction or power, though it may be subject to reversal on appeal.
   Courts of equity have general jurisdiction or power to enforce liens, and even though in a particular case the chancellor, having jurisdiction of the parties and the subject-matter, holds that a written instrument affords a lien when properly interpreted, no lien is shown by the instrument itself or by proper allegations and permissible proofs concerning its import or intended purpose, yet a decree rendered in the cause, enforcing a lien in the premises, is not void for want of jurisdiction or power to render it, though the decree may be erroneous and subject to reversal on appeal duly taken.
6 Statutory provisions
The statute provides that “all liens of any kind, whether created by statute or the common law, and whether heretofore regarded as merely possessory or not, may be enforced by proceedings in chancery. (Rev. Gen. St. 1920 § 3228)
7 Courts 27, Judgment 7, 542
If court has jurisdiction, it has right to decide every question occurring in cause; judgment of court having jurisdiction, until reversed, is binding in every other court; if court acts without authority, its judgments and orders are nullities and void.
   Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment until reversed, is regarded as binding in every other court. But, if it acts without authority, its judgment and orders are regarded as nullities. They are not voidable, but simply void.
8 Equity 1
Jurisdiction in equity, when it should not be exercised, is denied, even though the court has the judicial power to proceed in the cause.
9 Appeal and error 1169(, Equity 415
In equity, where there is a want of power, decree rendered is void; where there is want of equity and not lack of power, decree may be reversed on appeal, though it is not subject to a motion to vacate because void.
10 Courts 17
Jurisdiction of subject-matter of action is power to adjudge concerning general question involved therein, and is not dependent on facts or ultimate existence of good cause of action.
11 Equity 1
Jurisdiction of equity does not depend on sufficiency of bill, and, if court has jurisdiction of parties and subject-matter, defectively stating cause of action does not oust its jurisdiction.
12 Appeal and Error 1169(, Judgment 15
If defect of jurisdiction springs from want of power, judgment is void; if defect of jurisdiction springs from inexcusable departure from established principles, judgment is erroneous and should be set aside on appeal regardless of counsel’s attitude.
13 Judgment 418, 489, 576(1)
Want of judicial power as to subject-matter renders relief granted open to challenge, directly or indirectly, as void; judgment is binding on parties until set aside by appropriate proceeding, regardless of court’s inexcusable departure from established principles.
14 Judgment 405, 636
Judgment of court with constitutional power to decide on its own jurisdiction, and to exercise it to final judgment, without setting forth facts and evidence on which it is rendered, and whose record is absolute verity, is conclusive except on appeal; if court has power to decide on own jurisdiction and to exercise it to final judgment, and its record imputes absolute verity, there can be no judicial inspection behind its judgmen
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« Reply #11 on: December 08, 2006, 12:23:45 PM »

Becker Holding Corp. v. Becker, 78 F.3d 514 (C.A. 11 (Fla.) 1996)
4 Interest 9
Under Florida law, successful plaintiff is entitled not only to amount lost, but also to interest on amount lost in order to compensate plaintiff for having been deprived of use of principal loss amount.
5 Interest 39(2.6)
Under Florida law, prejudgment interest is awarded to compensate plaintiff for having been deprived of value of principal losses from time of loss to time of judgment.
6 Interest 39(3)
Under Florida law, postjudgment interest is awarded to compensate plaintiff for having been deprived of value of principal losses from time of judgment to time that plaintiff is actually paid.
7 Interest 60
Under Florida law, because prejudgment interest serves only to compensate plaintiff for deprivation of use of principal loss amount for set period of time – from date of loss to judgment; therefore, ordering postjudgment interest on prejudgment interest would overcompensate for the deprivation.
8 Interest 39(2.30)
Under Florida law, holder of promissory note was entitled to prejudgment interest on interest portion of delinquent and fully matured installment payment.


Neva, Inc. v. Christian Duplications International, Inc., 743 F.Supp. 1533 (M.D.Fla. 1990)
3 Interest 39(2.5)
Under Florida law, prevailing party on breach of contract claim is entitled to prejudgment interest if verdict fixes damages as of prior date.
35 Damages 117
Generally, in breach of contract action, prevailing plaintiff’s damages are measured as reasonable amount of lost profits, which are ascertainable, that would have resulted had there been no breach and had contract been performed.
36 Damages 119
Jury has considerable discretion in amount of damages awarded in breach of contract action, where damages are unliquidated and susceptible to measurement by specific standard.

142   SCOFLA denies preJI to party who did not suffer OOP expenses.
Alvarado v. Rice, 614 So.2d 498 (Fla. 1993)
1 Interest 39(2.6)
Plaintiff is entitled to prejudgment interest when it is determined that plaintiff has suffered actual, out-of-pocket loss at some date prior to the entry of the judgment.
2 Interest 39 (2.50)
Plaintiff who did not pay medical bills prior to entry of final judgment and who was not charged interest by her health care providers was not entitled to prejudgment interest on damage award for past medical expenses.
3 Interest 39 (2.50)
Claimant in personal injury action is entitled to prejudgment interest on past medical expenses only when the trial court finds that claimant has made actual, out-of-pocket payments on those medical bills at a date prior to the entry of judgment, in which case court can properly award prejudgment interest at the statutory rate from the date of payment.

143
Venn v. St.Paul Fire and Marine Ins. Co., 169 B.R. 735 (N.D.Fla. 1994)
2 Interest 39(2.6)
Under Florida law, claimant is entitled to prejudgment interest if he or she has suffered actual, out-of-pocket loss at some date prior to entry of judgment; actual loss will almost always be damage to property or wrongful withholding of money.
3 Interest 39(2.35)
Under Florida law, lack of out-of-pocket loss suffered by neurosurgeon’s bankruptcy estate as result of insurer’s repeated refusal to settle for $250,000 malpractice claim that eventually resulted in judgment against debtor for more than $3.3 million precluded award of prejudgment interest on any recovery by Chapter 7 trustee on bad-faith claim against insurer, where bankruptcy estate had expended no funds to satisfy plaintiff’s claim, and no interest had accrued against bankruptcy estate. Bankr.Code 11 USCA § 502
(b)(2).


Hilton Oil Transport v. Oil Transport, 659 So.2d 1141 (Fla. 3rd DCA 1995)
23 Interest 39(2.25)
Purpose of prejudgment interest is not to penalize losing party but to fully compensate prevailing party for use of funds found to be rightfully his.
24 Interest 39(2.25)
It was abuse of discretion to deny vessel owner prejudgment interest on damage award against charterer for breach of charter party where trial court made no specific finding to support the denial and record failed to disclose basis to support denial on ground of equity.

The purpose of prejudgment interest is not to penalize the losing party but to fully compensate the prevailing party for the use of funds founds to be rightfully his.
See City of Milwaukee, 115 S.Ct. at 2096; Insurance Co. of North Am., 901 F.2d at 942.


Black, Crow & Eidness, Inc. v. Cousins Construction Co. III, Inc. of Fla., 556 So.2d 1146 (Fla. 2nd DCA 1989)
1 Interest 39(2.5)
Party is entitled to prejudgment interest on his out-of-pocket, pecuniary losses once verdict has liquidated damages as of date certain.
2 Interest 39(2.5)
Prejudgment interest is awarded on loss theory rather than as penalty for wrongful act.
3 Interest 39(2.30)
Property owners were entitled to prejudgment interest on sums they had to pay to excavation company in connection with development project aborted by defendant’s breach of contract, but only from date that judgment was entered for excavation company in mechanics’ lien action against them.



Mar-len Housing Enterprises, Inc. v. Mar-Len Gardens “I” Corp., 302 So.2d 469 (Fla. 3rd DCA 1974)
2 Interest 39(1)
In an action for breach of contract, interest on judgment generally accrues from time of breach where amount of liability is fixed by contract.


Herrero v. Pearce, 571 So.2d 96 (Fla. 1st DCA 1990)
3 Interest 39(1)
Under “loss theory,” plaintiff is to be made whole from date of loss once finder of fact has determined amount of damages and defendant’s liability therefore.


Summerton v. Mamele, 711 So.2d 131 (Fla. 5th DCA 1998)
2 Interest 31, 39(2.10)
If a plaintiff establishes that he sustained out-of-pocket loss, prejudgment interest must be awarded from the date of the loss, and the trial court has no discretion with regard to awarding prejudgment interest and must do so applying the statutory rate of interest in effect at the time the interest accrues.


Brooks v. School Board of Brevard County, FL, 419 So.2d 659 (Fla. 5th DCA 1982)
4 Interest 31, 44
Interest in contract actions is generally recoverable as part of plaintiff’s damages at legal rate from date debt was due.


Doran v. Gainer, 443 So.2d 473 (Fla. 5th DCA 1984)
6 Assessment of interest on a debt must be made at statutory rate where no specific rate was agreed upon by parties.


Ray v. Travelers Insurance Co., 477 So.2d 634 (Fla. 5th DCA 634)
Life insurance case.
1 Interest 31, 44
In action on contract, person to whom debt is due is entitled to interest at legal rate from date debt was due, even where bona fide dispute exists as to amount or obligation to pay.


Wong v. New Prospect Enterprises, Inc., 488 So.2d 647 (Fla. 5th DCA 1986)
Interest 31, 39(2.30)
Plaintiff who was entitled to judgment on breach of contract action was entitled to prejudgment interest on the amount of verdict at statutory rate from date of loss.


Maryland Casualty Co. v. Florida Produce Distributors, Inc., 498 So.2d 1383 (Fla. 5th DCA 1986)
Insured suing insurer under collision policy.
3 Interest 39(2.30)
Court may impose additional damages in the form of prejudgment interest where payment of money due is delayed because contracting parties cannot agree on proper sun due.
6 Interest 31, 35, 44
Where the breach of contract to pay sum of money is caused by good-faith controversy as to amount due under terms of contract and verdict liquidates the damages due, prejudgment interest is to be awarded on amount due and is to be awarded at rate provided in the contract or, if no rate is provided in the contract, then at the statutory rate, calculated from the time the sum of money is due under the contract.


Cioffe v. Morris, 676 F.2d 539 (11th Cir. 1982)
6 Interest 39(2)
Under Florida law, prejudgment interest is allowed only on liquidated claims.
7 Interest 19(1)
A claim is unliquidated when the amount of the damages cannot be computed except on conflicting evidence, inferences and interpretations.


LaFaye v. Presser, 535 So.2d 635 (Fla. 1st DCA 1988)
Interest 31, 36(1)
Prevailing party was not entitled to prejudgment interest at statutory rate of 12 percent, as contract upon which action was based provided for such interest at 6 percent.

123
Ferrell v. Ashmore, 507 So.2d 691 (Fla. 1st DCA 1987)
2 Interest 31, 39(2, 15)
When trier of fact liquidates damages on plaintiff’s out-of-pocket, pecuniary losses, plaintiff is entitled as matter of law to prejudgment interest at the statutory rate from the date of that loss.
Five issues presented on appeal”
Whether the evidence of damages presented by appellees was competent.
Whether the trial court’s finding that the early termination of the construction contract was justified is supported by competent substantial evidence.
Whether the trial court erred in failing to award appellant prejudgment interest on his damages.
Whether the trial court erred in awarding duplicate damages to appellees.
 
124
Chiado v. Rauch, 497 So.2d 945 (Fla. 1st DCA 1986)
Interest 31, 39(2, 30)
Where verdict liquidates damages on plaintiff’s out-of-pocket, pecuniary losses arising from breach of contract to construct boat, plaintiff was entitled, as a matter of law, to prejudgment interest at the statutory rate from date of breach of contract which was date that boat was to be delivered. § 687.01, Fla. Stat.
“when a verdict liquidates damages on a plaintiff’s out-of-pocket, pecuniary losses [as of a date certain], plaintiff is entitled, as a matter of law, to prejudgment interest at the statutory rate from the date of that loss”474 So.2d at 215 (Argonaut)

125
Evans v. Borkowski, 139 So.2d 472 (Fla. 1st DCA 1962)
4 Interest 31
Interest at legal rate accrues on delinquent amounts payable by contract.

126
Leon v. West Collier Properties, Inc., 575 So.2d 1316 (Fla. 2nd DCA 1991)
1 Interest 31, 39(2.15)
Once a verdict liquidates damages on plaintiff’s out-of-pocket, pecuniary losses, plaintiff is entitled, as a matter of law, to prejudgment interest at statutory rate, from date of loss.

127
Ellis National Bank of Tallahassee v. Davis, 359 So.2d 466 (Fla. 1st DCA 1978)
1 Interest 31
Where it was clear that parties did not contract for lesser or greater rate of interest to be charged on promissory note, interest rate on note was fixed by statute at six percent per annum. F.S. 687.01
2 Usury 50
Lender violated usury laws by charging borrower maximum rate of ten percent interest and calculating interest on 360-day year.
3 Banks and Banking 270(1)
Where bank which was found to have charged usurious interest was national bank, statute providing that lender should forfeit double amount of interest usuriously exacted was inapplicable since bank was subject to National Bank Act which furnished exclusive remedy. National Bank Act, 12 USCA 86, F.S. 687.04
4 Banks and Banking 270(6)
Section of National Bank Act providing in first sentence that bank which has knowingly charged usurious rate of interest shall forfeit entire interest on loan transaction, and in second sentence that where usurious interest has been paid, borrower may recover back from lender twice amount of interest thus paid, must be read as furnishing separate and distinct remedies in first and second sentences thereof. National Bank Act, 12 USCA 86.
5 Banks and Banking 270(6)
 In section of National Bank Act providing that bank’s knowing exaction of usurious interest in loan transaction “ …. shall be deemed a forfeiture of the entire interest …. “, word “forfeiture” is prospective in tense and meaning and has no application to interest already paid.  National Bank Act, 12 USCA 86.
6 Banks and Banking 270(6)
Where parties stipulated that borrower paid interest, which was found to be usurious, in sum of $23,638.93, in connection with loan from national bank, borrower was entitled to recover back from bank twice that amount or $47,277.86. National Bank Act, 12 USCA 86.
7 Limitation of Actions 182(5)
Two-year statute of limitations contained in section of National Bank Act providing for borrower to recover back from national bank which has exacted usurious interest twice amount of interest so paid was inapplicable where not raised at trial in state court since statute of limitations is affirmative defense which is waived if not pleaded.  
National Bank Act, 12 USCA 86.

128
Bloch Equipment Co., Inc. v. National Medical Industries, Inc., 539 So.2d 1140 (Fla. 3rd DCA 1989)
BoC action was brought.
1 Interest 31, 39(2.30)
Plaintiff, who prevailed in breach of contract action and obtained verdict which liquidated damages on plaintiff’s out-of-pocket pecuniary losses, was entitled to prejudgment interest at statutory rate from date of loss.


Industrial Risk v. M.A.N. Gutehoffnungshutte, 141 F.3d 1434 (11th Cir 1998)
15 Interest 39(2.10)
Award of prejudgment interest are equitable remedies, to be awarded or not awarded on district court’s sound discretion.
16 Interest 39 (2.6)
Pre-judgment interest is not a penalty, but compensation to plaintiff for use of funds that were rightfully his.
17 Interest 39(2.20)
Absent any reason to the contrary, prejudgment interest should normally be awarded when damages have been liquidated by international arbitral award.
18 Interest 27
In absence of controlling statute, federal courts’ choice of rate at which to determine amount of prejudgment interest to be awarded is matter for their discretion, guided by principles of reasonableness and fairness, by relevant state law, and by relevant fifty-two week United States Treasury bond rate, which is rate that federal courts must use ib awarding post-judgment interest. 28 USCA § 1961.



The SCOTUS case that authorized usury law preemption by National Bank credit card issuers:
Marquette National Bank of Minneapolis v. First of Omaha Services Corp., 99 S.Ct. 540, 439 U.S. 297
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« Reply #12 on: December 08, 2006, 12:24:43 PM »

BIG Foreclosure case


State Street Bank and Trust Co. v. Lord, 851 So.2d 790 (Fla. 4th DCA 2003)
1 Mortgages 218.8, 248, 417
Right to enforce lost promissory note was not properly assigned, and thus, mortgagee by assignment could not maintain cause of action to enforce promissory note or foreclose mortgage; neither mortgagee by assignment nor its predecessor in interest possessed the note and did not otherwise satisfy the requirement of statute governing the enforcement of lost, destroyed, or stolen instruments, at time of assignment. F.S. 673.3091.
2 Mortgages 417
Mortgagee by assignment could not pursue a mortgage foreclosure in the absence of proof that either the mortgagee or its assignor ever had possession of missing promissory note. F.S. §§ 90.853(1), 673.3091.


 Reestablishment


Shores v. First Florida Resource Corp., 267 So.2d 696 (Fla. 2nd DCA 1972)
Lost Instruments 8(3)
Individuals, who acquired property subject to mortgage and agreed to assume it, were entitled to assurance that they would not later be sued by a holder of lost note and mortgage, and these instruments could not be reestablished where corporate mortgagee has admittedly transferred some mortgages to a bank and some to stockholders whose interest was being acquired, and all record showed was bare affirmation of two corporate officers that mortgage in question was not assigned. F.S. 71.011.
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« Reply #13 on: December 08, 2006, 12:25:38 PM »

Wassil v. Gilmour, 465 So.2d 566 (Fla. 3rd DCA 1985)
4 Limitation of Actions 146(2)
An acknowledgment by borrower that he would pay lender back, even an oral one if it was made prior to expiration of limitations period, has effect of restarting statute of limitations from date of new promise. 95.11(3)(k), 95.11(5)(e)
5 Limiation of Actions 151(1)
New promise by borrower to repay lender creates a new and independent cause of action on that separate undertaking.


City of Brooksville v. Hernando County, 424 So.2d 846 (Fla. 5th DCA 1982)
1 Limitation of Actions 13
Continuing negotiations regarding settlement do not toll running of statute of limitations, but such negotiations, if infected with element of deception, may create estoppel, and same is true even following enactment of statute providing that no disability or other reason shall toll running of any statute of limitations except those specified. 95.051(2), 95.11.
2 Limitation of Actions 13
Where answer raised affirmative defense of statute of limitations and no reply was filed, issue of estoppel to assert application statute of limitations was not issue properly before trial court based on the pleadings. 95.051(2), 95.11, Rule 1.100(a)


Wetmore v. Brennan, 378 So.2d 79 (Fla. 3rd DCA 1979)
1 Statutes 223.4
Where two statutes of limitation were in conflict, the Commercial Code, which specifically set forth when a cause of action accrued on a demand note governed over the general provisions of statute. 95.031(1), 673.122(1)(b)


Hobbs v. U.S. Office of Personnel Management, 485 F.Supp. 456 (M.D.Fla. 1980)
4 Courts 39, Judgment 398
A court has the power to determine the extent of its own jurisdiction, and only when there is a clear usurpation or power will the decision be considered void.
5 Judgment 660 1/2
A judgment which is not void, even though it may be based on erroneous exercise of jurisdiction, is subject to res judicata and can be reviewed only by direct appeal.
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