DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GUILFORT DIEUVIL, MAGDADENE DIEUVIL and CLEBENE CASIMIR,
Appellants,
v.
FALCON TRACE HOMEOWNERS ASSOCIATION, INC.,
a Florida Not-for-Profit Corporation,
Appellee.
No. 4D20-1652
[August 25, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Janet Croom, Judge; L.T. Case No.
312019CA000858.
Guilfort Dieuvil, Magdadene Dieuvil and Clebene Casimir, Vero Beach,
pro se.
No appearance for appellee.
ARTAU, J.
This is an appeal from an order granting a motion for entry of default
against each of the appellants. Because the order on review is a non-final,
non-appealable order, we dismiss for lack of jurisdiction.
In this lien foreclosure proceeding initiated by appellee, appellants
obtained two extensions of time within which to file their answer and then
sought a third extension of time by written motion. Before the trial court
ruled on the third extension request, appellee moved for entry of default
against each of the appellants pursuant to Rule 1.500(b) of the Florida
Rules of Civil Procedure. After the filing of appellee’s motion, but before
any ruling by the trial court, appellants filed their answer. Appellants also
filed a notice indicating that they were no longer in default by virtue of the
filing of the answer.
Despite the filing of the notice and answer, the trial court entered a
default against each of the appellants pursuant to rule 1.500(b). The
appellants moved to set aside the defaults entered against them and filed
this appeal.
The order on review is neither a final appealable order nor a non-final
appealable order. See, e.g., Singh v. U.S. Bank, N.A.,
223 So. 3d 436, 438
(Fla. 2d DCA 2017) (order granting a motion for default “is a nonfinal,
nonappealable order”); Kogan v. Mildenberger,
127 So. 3d 831, 832 (Fla.
3d DCA 2013) (order granting a motion for entry of default “is a non-final,
non-appealable order”); Westwood One, Inc. v. Flight Express, Inc.,
940 So.
2d 1241, 1243 n.1 (Fla. 5th DCA 2006) (an order granting a motion for
default “does not qualify for review as a final, appealable order since it is
simply an order granting a motion, not an order entering a final default
judgment”). Moreover, “[a]ppeals of non-final orders determining the issue
of liability in favor of a party seeking affirmative relief” were removed in
2001 from the list of appealable non-final orders set forth in Rule 9.130 of
the Florida Rules of Appellate Procedure. Kogan,
127 So. 3d at 832.
Thus, we dismiss this appeal for lack of jurisdiction without prejudice
to the trial court’s ability to consider appellants’ motion to set aside the
defaults. See Fla. R. Civ. P. 1.500(c) (“A party may plead or otherwise
defend at any time before default is entered.”); see also Byfield v. Nat’l
Westminister Bank PLC,
657 So. 2d 931 (Fla. 4th DCA 1995) (“[T]rial court
should have granted [appellant’s] motion to set aside the default entered
by the court, because prior to the entry of the default, appellant had filed
a responsive pleading.”); Carillon Corp. v. Devick,
554 So. 2d 630, 632 (Fla.
4th DCA 1989) (“Where an answer is filed before the hearing on the motion
for default, the trial court is without authority to default a defendant
because of his failure to answer.”); Talcott Resolution Life Ins. Co. v.
Novation Capital LLC,
261 So. 2d 580, 584 n.2 (Fla. 4th DCA 2010) (noting
that a defendant may plead or otherwise defend until a default is entered).
Dismissed without prejudice.
DAMOORGIAN and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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