If you respond too slowly to a complaint, you are likely to be defaulted. That means you don't have to get notice of anything else happening in the case and that a judgment will be entered against you without you having a chance to argue your case. If you want to contest the case, the first step is to obtain relief from the default. I've included a sample motion below.
IN THE CIRCUIT COURT OF THE EIGHTEENTH
JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY , FLORIDA
CASE
NO.: 05-2007-CA-0XXXX-XXXX-XX
KARLA
LASTNAME,
Plaintiff,
vs.
CLAYTON
SURNAME and JOHN DOE
BUILDERS,
INC.
Defendants.
___________________________________/
VERIFIED
MOTION FOR RELIEF OF DEFAULT JUDGMENT
COME NOW the Defendant, JOHN DOE
BUILDERS, INC., by and through its undersigned counsel, and pursuant to
Fla.R.Civ.P. 1.540(b), moves for relief from the Default Judgment entered, and in
support thereof states:
1. Apparently, service was effected on Defendants on March
23, 2007 ,
such that responsive pleadings were due by April 12, 2007 .
2. A responsive pleading was served by Defendant CLAYTON SURNAME,
on his own behalf and on behalf of Defendant JOHN DOE BUILDERS, INC. That response is attached hereto as
Defendant’s Exhibit “1”.
3. That responsive pleading indicates the presence of a real
case or controversy as to what Defendant corporation was contracted to do.
4. At the time that response was made, CLAYTON SURNAME was
unaware or mistaken as to his ability to respond on behalf of Defendant
Corporation.
5. Plaintiff, aware that CLAYTON SURNAME was not a licensed
attorney, and was acting pro se,
properly moved to strike Defendant’s pleading.
6. A Default was subsequently entered on June
15, 2007
against Defendant JOHN DOE BUILDERS, INC.
7. On or around that time, Defendant CLAYTON SURNAME submitted
the claim to his insurance carrier, Mid-Continent Casualty Company, as
indicated by Defendant’s Exhibit “2”.
8. Ultimately, Mid-Continent Casualty Company denied
coverage. Subsequently, Defendant
CLAYTON SURNAME retained Michael B. Lesage, Esq. to defend this action.
9. The facts alleged in CLAYTON SURNAME’S response, as well as
his proposed Amended Answer, indicate the presence of a real case or
controversy and illustrate that Defendant may assert a meritorious defense in
this action, such that the action should be tried on the merits. Country Clubs of Sarasota, Ltd. v. Zaun
Equipment, Inc., 350 So.2d 539 (Fla.
10. The above facts illustrate that the
failure of Defendant Corporation to Answer was the result of mistake,
inadvertence or excusable neglect.
Moreover, Defendant Corporation has a meritorious defense.
11. Finally, Defendant Corporation, in
learning of the Default, acted properly by notifying its insurance
carrier. When it became clear that the
insurance would not provide a defense, Defendants retained counsel.
12. There is a strong preference for lawsuits
to be determined on the merits, and Courts should liberally set aside Defaults
under appropriate circumstances. Geer
v. Jacobsen, 880 So.2d 717 (Fla.
WHEREFORE,
Defendants request Relief from Default, such that this case may be determined
on the merits.
CERTIFICATE
OF SERVICE
I HEREBY
CERTIFY that
a true and correct copy of the foregoing has been furnished via U.S. Mail this
______ day of March, 2008 to Allan P. Lawyer,
9
City Boulevard, Suite 505 , Melbourne , FL 32935
By:
_________________________________________
Michael
B. Lesage
321-269-6833 Florida
Attorney
for the Defendants
VERIFICATION
I, CLAYTON SURNAME, individually, and as
President of JOHN DOE BUILDERS, INC., Defendants in the above action, hereby
depose and state that I have read the contents of the foregoing Verified Motion
For Relief of Default Judgment, and that the statements contained therein are
true to the best of my knowledge.
JOHN DOE BUILDERS, INC.,
By: ________________________________
Name: Clayton SURNAME_ _______________
Its: President_________________________
_____________________________
Clayton
SURNAME
STATE OF FLORIDA
Sworn to and subscribed before me
this _______ day of March, 2008, by Clayton SURNAME, individually, and as
President of JOHN DOE BUILDERS, INC.,
q personally known to me.
q
produced a current
driver’s license as identification or who produced
_____________________________ as identification.
{Notary Seal must be affixed}
Signature of Notary
Name of Notary (Typed, Printed or
Stamped)
Commission Number (if not legible on
seal):________________
My Commission Expires (if not legible on seal):
Name of Notary (Typed, Printed or
Stamped)
Commission Number (if not legible on
seal):________________
My Commission
Expires (if not legible on seal):
IN THE CIRCUIT COURT OF THE
EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR BREVARD COUNTY, FLORIDA
CASE NO.: 05-2009-CA-026301-XXXX-XX
NONSTANDARD OIL COMPANY, INC.,
Plaintiff,
-vs-
JOHN DOE CONSTRUCTION
Defendant.
____________________________________/
FINAL JUDGMENT AGAINST JOHN DOE
CONSTRUCTION
THIS CAUSE having come before the Court
on the Plaintiff’s Motion for entry of a Final Summary Judgment of Default and
Damages, and after entry of Default against Defendant, and the Court, having
considered the Motion, reviewed the file, Affidavits of the Parties, and
otherwise being fully advised in the premises, it is thereupon
ORDERED AND ADJUDGED:
1. That Judgment shall be issued in favor
of Plaintiff and against Defendant JOHN DOE
CONSTRUCTION, with Tax Id number:
1234, in the amount of $48,128.78, with interest accruing at
the statutory rate, and Plaintiff shall recover that amount from
Defendant.
2. The address of the Plaintiff is 1
Rue Ave , Titusville , FL
32780
3. It is further
ordered and adjudged that the judgment debtor(s) shall complete under oath
Florida Rule of Civil Procedure Form 1.977 (Fact Information Sheet), including
all required attachments, and serve it on the judgment creditor's attorney,
within 45 days from the date of this final judgment, unless the final judgment
is satisfied.
4. Jurisdiction of this case is
retained to enter further orders that are proper for Execution and/or
Garnishment, and to compel the Judgment debtor to complete form 1.977, including all required attachments, and serve it on the
judgment creditor's attorney.
DONE AND ORDERED in Chamber at Viera ,
Florida
__________________________________
Honorable
CHARLES A. JUDGE
Circuit
Court Judge
Copies furnished to
MICHAEL B. LESAGE, 815 S.
Washington Ave , Titusville , FL 32780
DEF name and address.
Honorable Judge Judginess
Circuit Court Judge
RE: NONSTANDARD OIL COMPANY, INC. vs. JOHN
DOE CONSTRUCTION, INC.
CASE
NO.: 05-2008-SC-00XXXX-XXXX-XX
Dear Judge Judginess,
Please find
enclosed my Motion for Default Judgment, an Affidavit establishing damages, and
my Proposed Final Judgment. Should the
documents be incorrect or incomplete in any way, please inform me so that I may
make any necessary changes.
Very Truly Yours
MICHAEL B. LESAGE,
Esq.
321-269-6833
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