Affordable Homes, Inc. v. McKinney-Green, Inc.

509 So. 2d 407, 12 Fla. L. Weekly 1664, 1987 Fla. App. LEXIS 9198

• Court: District Court of Appeal of Florida
• Decided: July 9, 1987
• Docket: No. BS-426
• Status: Published

Opinion

WENTWORTH, Judge.

Appellants seek review of a default order and judgment of liability in a mortgage foreclosure action. The default was entered upon a determination that appellants had failed to plead or otherwise defend the action. We find that the court erred by declining to consider appellants’ motion to dismiss as a defensive response. We therefore reverse the default order and judgment of liability.

After a complaint seeking foreclosure of a mortgage was filed appellants moved for dismissal, contending that because of a pleading deficiency the complaint did not state a cause of action. Appellee sought a default order, asserting that the motion to dismiss was unresponsive. The court agreed with appellee, indicating that the motion to dismiss was without merit. The court denied the motion to dismiss and entered an order of default.

Although the motion to dismiss may have been without merit, the court did not characterize it as frivolous or lacking a justicia-ble issue. The motion was a sufficient response so as to preclude the entry of a default for failure to plead or defend the action. See Irwindale Company N.V. v. Three Islands Olympus, 474 So.2d 406 (Fla. 4th DCA 1985). Appellants’ motion to dismiss should have been accorded such effect, and the court should not have entered an order of default or judgment of liability.

The order of default and judgment of liability are reversed and the cause is remanded.

SMITH, C.J., and BOOTH, J., concur.