Thursday, April 21, 2011

Entry Of Default Is Not Discretionary

In TBOM Mortgage Holdings LLC v. Brown (3D11-229), the Third District agreed with the petitioner that the trial court erred by refusing to enter a default. The trial court had refused to enter the default based upon "what must be called the spurious reason that the non-military affidavit was in some unspecified (because non-existent) way 'insufficient'.”
In fact and in law, the affidavit, which was in the universally accepted form, and was supported by evidence which clearly established that the defendant, who was personally served at his home in Miami-Dade County, was not in the military service, was legally impeccable. Since it is established and we repeat that the trial court is not free to refuse to follow the law because of some personal disinclination or otherwise....and that it is, therefore,mandatorily required to enter the default sought in this is ordered that it expeditiously do so.
Judge Salter dissented for two reasons. First, he believed this should have been treated as a petition for certiorari and not mandamus. Had it been treated as a petition for certiorari the petition would have been untimely. Second, Judge Salter stated that Florida Rule of Civil Procedure 1.500(b) uses "may" regarding the entry of default and not "must." The use of the word "may," according to Judge Salter, renders it a discretionary task and inappropriate for mandamus.


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