Rucker v. McGriff

District Court of Appeal of Florida

Rucker v. McGriff

572 So. 2d 568, 1991 Fla. App. LEXIS 183, 1991 WL 2764

CourtDistrict Court of Appeal of Florida

DecidedJanuary 16, 1991

DocketNo. 89-2515

StatusPublished

Cited by1 cases

This text of 572 So. 2d 568 (Rucker v. McGriff) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rucker v. McGriff, 572 So. 2d 568, 1991 Fla. App. LEXIS 183, 1991 WL 2764 (Fla. Ct. App. 1991).

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Opinion

PER CURIAM.

This appeal from an order granting a motion to vacate a default is dismissed as a non-final nonappealable order as it does not appear from the record transmitted by the clerk that the Final Judgment was ever filed, and certainly from the transcripts of proceedings it appears that the court did not believe that a final judgment had been filed. See Broward Employment and Training Admin. v. Community Partnership Program, Inc., 422 So.2d 1101 (Fla. 4th DCA 1982). Cf. Humbert v. Ackerman, 541 So.2d 1229 (Fla. 3d DCA 1989) (defendant in action entitled to have default vacated where he filed his answer after order of default signed but before it was filed).

[569]*569Moreover, as appellee points out any default judgment would have been erroneously entered because appellee was entitled to notice and a trial on damages even if a default had been entered on liability. Fla. R.Civ.P. 1.440(c). From the face of the record there was no order setting trial, and it appears that only an unserved affidavit of damages, which was filed on the same date as a hearing for final judgment subsequent to default, was relied on by appellant to justify the final judgment. However, this hearing was not held pursuant to an order setting trial on the damage issue. This is patently insufficient and not in compliance with rule 1.440 governing the setting of actions for trial.¹

GLICKSTEIN, WALDEN and WARNER, JJ., concur.

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PER CURIAM.

This appeal from an order granting a motion to vacate a default is dismissed as a non-final nonappealable order as it does not appear from the record transmitted by the clerk that the Final Judgment was ever filed, and certainly from the transcripts of proceedings it appears that the court did not believe that a final judgment had been filed. See Broward Employment and Training Admin. v. Community Partnership Program, Inc., 422 So.2d 1101 (Fla. 4th DCA 1982). Cf. Humbert v. Ackerman, 541 So.2d 1229 (Fla. 3d DCA 1989) (defendant in action entitled to have default vacated where he filed his answer after order of default signed but before it was filed).

[569]*569Moreover, as appellee points out any default judgment would have been erroneously entered because appellee was entitled to notice and a trial on damages even if a default had been entered on liability. Fla. R.Civ.P. 1.440(c). From the face of the record there was no order setting trial, and it appears that only an unserved affidavit of damages, which was filed on the same date as a hearing for final judgment subsequent to default, was relied on by appellant to justify the final judgment. However, this hearing was not held pursuant to an order setting trial on the damage issue. This is patently insufficient and not in compliance with rule 1.440 governing the setting of actions for trial.¹

GLICKSTEIN, WALDEN and WARNER, JJ., concur.

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572 So. 2d 568, 1991 Fla. App. LEXIS 183, 1991 WL 2764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rucker-v-mcgriff-fladistctapp-1991.

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