02-0397 WILLIAM DRAKE V. THE PUBLIC HEALTH TRUST

State: Florida

Court: Florida Third District Court

Docket No: 02-0397 WILLIAM DRAKE V. THE PUBLIC HEALTH TRUST

Case Date: 11/13/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2002

WILLIAM DRAKE, Appellant, vs. THE PUBLIC HEALTH TRUST OF DADE COUNTY, FLORIDA, Appellee.

** ** ** ** CASE NO. 3D02-397 LOWER TRIBUNAL NO. 98-2655 **

Opinion filed November 13, 2002. An Appeal from the Circuit Court for Dade County, Thomas S. Wilson, Jr., Judge. Lidsky Vaccaro & Montes and Charles Vaccaro, for appellant. Bacen & Jordan and Joseph W. May, for appellee.

Before JORGENSON, LEVY, and GREEN, JJ.

PER CURIAM.

Appellant, the defendant below, appeals from a trial court

Order denying his Motion to Dismiss for Insufficiency of Service of Process and to Quash Service of Process, and from a

concurrent Order of Default and Default Final Judgment. We reverse the Default Judgment, but affirm the Order denying appellant's Motion to Dismiss and to Quash Service. Based on the fact that the appellant filed a response to the Complaint prior to the hearing on the Plaintiff's Motion for Default, both the Default against the appellant and the Default Final Judgment were improvidently granted. See Fla. R. Civ. P.

1.500(c); Carder v. Pelican Cove West Homeowners Ass'n Inc., 595 So. 2d 174, 175 (Fla. 5th DCA 1992)("[t]he filing of the motion to dismiss precluded any subsequent entry of default in respect to any complaint pending at that time.")(citations omitted); see also Lenhal Realty Inc. v. Transamerica Commercial Finance Corp., 611 So. 2d 79, 80 (Fla. 4th DCA 1992); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734, 735 (Fla. 3d DCA 1980). However, with respect to appellant's Motion to Dismiss and to Quash Service due to alleged insufficiency of service, the Record supports the trial court's denial of appellant's Motion. Accordingly, we reverse the entry of Default and Final Default Judgment, affirm the denial of appellant's Motion to Dismiss and to Quash Service, and remand for further proceedings consistent

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herewith. Reversed in part; affirmed in part.

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