Willyerd v. Anderson

• Decision Date: 16 May 1975
• Docket Number: No. 72--878,72--878
• Citation: 312 So.2d 504
• Court: Florida District Court of Appeals
• Parties: James WILLYERD, Appellant, v. Andy ANDERSON and Lila J. Stevens, a/k/a L. J. Anderson, Appellees.

Page 504

312 So.2d 504

James WILLYERD, Appellant, v. Andy ANDERSON and Lila J. Stevens, a/k/a L. J. Anderson, Appellees.

No. 72--878.

District Court of Appeal of Florida, Fourth District.

May 16, 1975.

Robert D. Melton of Robert Melton & Associates, P.A., Orlando, for appellant.

James F. Page, Jr. of Best & Sears, Orlando, for appellee Andy Anderson.

James H. Seals, Orlando, for appellee Lila J. Stevens.

OWEN, Chief Judge.

Initially was had dismissed this appeal on the authority of our decision in Clement v. Aztec Sales, Inc., Fla.App.1973, 283 So.2d 68 (rev'd, Fla.1974, 297 So.2d 1). The Florida Supreme Court granted certiorari and quashed our decision, remanding the cause with directions to consider the appeal on the merits. Willyerd v. Anderson, Fla.1974, 302 So.2d 750.

In September 1971 appellant/plaintiff, James Willyerd, filed suit against the appellees/defendants, Andy Anderson and Lila J. Stevens, also known as L. J. Anderson, for replevin and both compensatory and punitive damages. Process was duly served on the defendants. Stevens filed an answer. However, Anderson who was served with process on September 29, 1971, failed to file an answer or responsive pleading as required by Rule 1.140, R.C.P., and on November 9, 1971 the plaintiff caused the clerk of the circuit court to enter a default against Anderson.

Trial at which both defendants appeared was held on May 8, 1972. At the close of all the evidence the trial court directed a verdict against the defendant Stevens as to liability. The jury verdict awarded plaintiff possession of certain personal property or its value, and additionallty assessed compensatory damages jointly and severally against the defendants in the amount of $14,400, and punitive damages in the sum of $45,000 against Anderson and $5,000 against Stevens.

On May 12, 1972 defendant Anderson filed his motion to set aside default, verdict and final judgment and also a motion for remittitur. A motion for a new trial and in the alternative, a motion for a judgment notwithstanding the verdict, was timely filed by Anderson a few days later. Defendant Stevens filed a motion for remittitur. After a hearing on these post-trial motions, the trial court entered its order which is here appealed. Finding that the default had been improperly entered by the clerk against the defendant Anderson, the order vacated and set aside the default and the jury verdict (no final judgment having been entered) and granted defendant Anderson's motion for new trial on the grounds (1) that the default having been improperly entered Anderson had been denied a trial on the issue of liability, and (2) that the verdict for compensatory and punitive damages shocked the judicial conscience of the court. Upon its own motion the court also granted a new trial to defendant Stevens for the same reasons.

The default against Anderson was not improperly entered by the clerk, and hence it was error for the trial court to vacate and set aside the default judgment. On November 9, 1971, forty-one days after service of process upon Anderson, he had not served upon plaintiff's counsel a copy of an answer or written defenses to the complaint (despite the requirements of the summons that same be done within twenty days from the date of service), nor had Anderson filed such with the clerk of the court. On that date plaintiff's counsel filed a motion requesting the clerk to enter a default against the defendant Anderson 'for failure to File written answer or defenses to the complaint filed herein by plaintiff within twenty days from the date of service of said complaint'. The sole basis upon which the trial court vacated the default was its finding that this motion did not provide a proper basis for the clerk to enter a default because the motion omitted to also allege the defendant's failure to Serve a copy of written answer or defenses prior thereto. In this respect the court misconstrued the teaching of Gilmer v. Rubin, Fla.App.1957, 98 So.2d 367, Pan American World Airways, Inc. v. Gregory, Fla.App.1957, 96 So.2d 669, and like cases.

A defendant personally served with process is required to Serve plaintiff with a copy of his answer or written defenses within twenty days after service. He is also required to immediately before or immediately thereafter file the original of such answer or written defenses with the clerk of the court. Service may be made by mailing and when its method is used, service is complete upon mailing. Thus, in practice, it is not unusual for a defendant's answer or written defenses to be Served by mail on the twentieth day after service of process while the original of such pleading is not actually Filed in the office of the clerk until a day or two later because it also may have been sent by mail. This is what occurred in the case of Gilmer v. Rubin, supra, and it was there held that the default, entered because the pleading was not filed with the clerk on or before the twentieth day after service of process, was improper where a copy of the pleading was Timely served by mail. This also was the factual situation in the case of Mo-Con Properties, Inc. v. American Mechanical, Inc., Fla.App.1974, 289 So.2d 744, in which it was held that a default entered by the clerk on the twenty-first day was improperly entered when ...