Tuthill v. Anthony Dieguez, P.A.

526 So. 2d 1045, 13 Fla. L. Weekly 1458, 1988 Fla. App. LEXIS 2585, 1988 WL 61983

• Court: District Court of Appeal of Florida
• Decided: June 21, 1988
• Docket: No. 87-594
• Status: Published

Opinion

PER CURIAM.

This cause was instituted by the appellee following a complaint to collect a past due bill for legal services. The defendant, the appellant herein, was confined to the state’s correctional system, and pro se filed an answer to the complaint and thereafter what purported to be a counterclaim. The counterclaim was met by a motion to dismiss which was granted. The matter was set, apparently for final hearing, and was met by a motion for continuance. Thereafter the trial court entered a judgment which indicated a default had been entered against the defendant and went on to award $15,501.99 as damages. The defendant filed a motion to set aside final judgment and thereafter a motion for an order to have the defendant transported from the correctional institution to Dade County for purposes of the hearing. The trial court entered an order directing the sheriff to transport the defendant to Dade County.¹ Notwithstanding the order, the defendant was not transported and the defendant’s motion for rehearing or motion to vacate was denied. We reverse.

First, with an answer filed, there was no basis to enter a default on the complaint. Second, the defendant was not transported to Dade County pursuant to the court’s order. It is interesting to note that the order said he was to be “transported for trial” when a previous order indicated there was no trial, and that it was on “a default” that the final judgment was entered. It appears that no proper default was entered. The final judgment is set aside and the matter is returned to the trial court for a trial on the issues as made by the original complaint and answer.

Reversed and remanded with directions.

1 . The order reads as follows:

"The Defendant having made a Motion before this Court requesting to be transported for a hearing scheduled on the 20th day of January, 1987, at 1:15 p.m., it is herein

ORDERED AND ADJUDGED that the Sheriff of Dade County transport the Defendant, HAROLD TUTHILL, to Dade County for trial on January 20, 1987, and it is further

ORDERED that the Sheriff of Dade County return the Defendant, Harold Tuthill to Avon Park Correctional Institution at the conclusion of said hearing.”