A Florida court must vacate default judgment when the defaulted party had responsive pleadings on file that were never stricken or found insufficient. That is the rule applied by the Third District Court of Appeal in Morrison v. Z Roofing & Waterproofing, Inc., 350 So. 3d 146 (Fla. 3d DCA 2022) (No. 3D22-720, Nov. 2, 2022; per curiam; Emas, Lindsey, and Gordo, JJ.).
Facts
Parties. Arthur J. Morrison was the defaulted party below and the appellant. Z Roofing & Waterproofing, Inc. held the default final judgment and was the appellee. The case came from the County Court for Miami-Dade County, Lower Tribunal No. 20-11804 CC (Judge Michael G. Barket).
What happened. Morrison filed four responsive pleadings before any default was entered. The trial court never struck those pleadings and never found them insufficient. A default final judgment was nevertheless entered against him. Morrison filed a motion to vacate default judgment, and the trial court denied it. He appealed that nonfinal order under Fla. R. App. P. 9.130(a)(5).
Judgment. The Third District reversed the order denying the motion and remanded.
Issues
- Did the trial court err in refusing to vacate default judgment when the defendant had filed multiple responsive pleadings before the default was entered?
- Can the party holding the default defend it on appeal by arguing that those pleadings were “insufficient” when the trial court never struck them or made that finding?
Holding
A Florida trial court cannot enter a default — or a default final judgment — against a party who has responsive pleadings on file unless the court first strikes those pleadings or otherwise finds them insufficient. Because neither step was taken here, the default should not have been entered, and denying the motion to vacate default judgment was error.
Rationale
The record controlled the outcome. Morrison had four responsive pleadings on file before the default. Z Roofing argued on appeal that they did not qualify as responsive pleadings because they were insufficient. But the trial court never made that finding and never struck the pleadings on that ground. An appellee cannot supply on appeal a ruling the trial court never made.
The court relied on three decisions applying the same rule:
- Azure-Moore Invs. LLC v. Hoyen, 300 So. 3d 1268, 1270 (Fla. 4th DCA 2020) — with no default entered, an answer on the record, and no order striking the answer, the trial court lacked authority to enter a default and had no basis to enter a default final judgment.
- Singh v. Kumar, 234 So. 3d 1, 4 (Fla. 4th DCA 2017) — reversing where the trial court failed to strike, or otherwise find insufficient, the defendant’s responsive letters.
- Carraway v. Common, 677 So. 2d 51, 52 (Fla. 2d DCA 1996) — reversing a default judgment where no attempt was made to strike the defendant’s answer for noncompliance with a court order.
The sequence matters. A party who believes an opponent’s filing is deficient must first move to strike it, or obtain an express finding of insufficiency, before seeking a default. Skipping that step leaves the default — and any judgment built on it — open to reversal, whether on a motion to vacate default judgment or on appeal.
Practice Points: Moving to Vacate Default Judgment
1. Check the docket before seeking a default. Under Florida Rule of Civil Procedure 1.500, the clerk may enter a default only when a party has failed to file or serve any document in the action. Once a party has filed or served a document, the default must come from the court, on notice of the application. If the filing is deficient, move to strike it and get a ruling first.
2. Lead with the record when you move to vacate default judgment. The opinion in Morrison does not discuss excusable neglect, a meritorious defense, or due diligence. The court reversed because the default should never have been entered. The key exhibits are the filings that pre-date the default and the absence of any order striking them. Rule 1.540 governs relief from judgments generally.
3. Get a ruling, and mind the appeal clock. An order refusing to vacate default judgment is an appealable nonfinal order under Fla. R. App. P. 9.130(a)(5). A party defending the default should obtain an express finding of insufficiency in the trial court. That argument comes too late if it is first raised on appeal.
Cox Law, PLLC represents individuals and businesses in civil litigation throughout Florida. If you need to vacate default judgment entered against you, or to defend one you obtained, call 813-685-8600 or contact us.
Read the full opinion: Morrison v. Z Roofing & Waterproofing, Inc., 350 So. 3d 146 (Fla. 3d DCA 2022) (CourtListener). A copy of the court’s opinion is also available below.