DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

RENEE B. HENDRIX,

Appellant,

v.

DEPARTMENT STORES NATIONAL BANK,

Appellee.

No. 4D14-1612

[September 30, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Thomas M. Lynch, IV, Judge; L.T. Case No. 11-31882 

(05).

Renee B. Hendrix, Lauderhill, pro se.

Brett A. Foster, Patrick A. Carey and Mairim M. Morales of Patrick A. 

Carey, P.A., Orlando, for appellee.

PER CURIAM.

The cardholder appeals from a final judgment entered after a judicial 

default. She argues that the judgment is void because she was denied the 

opportunity to be heard on the bank’s underlying motion for judicial 

default in contravention of Florida Rule of Civil Procedure 1.500(b). We 

agree that rule 1.500(b) requires an opportunity to be heard under the 

facts of this case and reverse.

Facts

After the bank filed its complaint, the cardholder filed a pro se letter 

and a motion to dismiss. The circuit court denied the motion to dismiss 

and ordered the cardholder to answer the complaint within thirty days. 

Forty-one days later, the cardholder filed a motion to compel discovery. In 

response, the bank filed a combined motion for judicial default and motion 

for default final judgment and served it on the cardholder. The motion 

was not set for hearing, and the circuit court entered a judicial default 

without a hearing. The cardholder moved for rehearing and the circuit 

court denied the motion, also without a hearing. Eventually, the bank set 
2

a hearing on the motion for default final judgment, and after the hearing,1

the circuit court entered the final judgment. This appeal follows.

Analysis

The cardholder argues that the final judgment is void because the 

underlying default was entered without affording the cardholder the 

opportunity to be heard. We agree.

Whether a judgment is void is a question of law reviewed de novo. See 

Infante v. Vantage Plus Corp., 27 So. 3d 678, 680 (Fla. 3d DCA 2009). “A 

judgment is void if, in the proceedings leading up to the judgment, there 

is [a] violation of the due process guarantee of notice and an opportunity 

to be heard.” Tannenbaum v. Shea, 133 So. 3d 1056, 1061 (Fla. 4th DCA 

2014) (internal quotations and citations omitted); see also Viets v. Am. 

Recruiters Enterprises, Inc., 922 So. 2d 1090, 1096 (Fla. 4th DCA 2006) (a 

denial of due process “voids the default, and derivatively the default 

judgment.”). If a judgment is void, a party is not required to demonstrate 

excusable neglect or a meritorious defense. Mullne v. Sea-Tech Constr., 

Inc., 84 So. 3d 1247, 1249 (Fla. 4th DCA 2012). 

Here, the bank filed its motion for judicial default pursuant to rule 

1.500(b) based on the cardholder’s failure to file pleadings as required by 

law and by the circuit court’s order directing the cardholder to file an 

answer within thirty days. Rule 1.500(b) provides that where, as here, a 

“party has filed or served any paper in the action, that party shall be served 

with notice of the application for default.”

Florida courts, including this court, have held that where, as here, a 

defendant files substantive papers in the action, rule 1.500(b)’s notice 

requirement also requires a hearing. See Yellow Jacket Marina, Inc. v. 

Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996) (where the appellants

“filed an answer to the original counterclaim and cross-claim and filed a 

motion for more definite statement following receipt of the amended 

counterclaim and cross-claim, . . . [the appellants were] entitl[ed] . . . to 

notice of the application for default and an opportunity to be heard 

thereon.”); Baleanu v. Sandulescu, 78 So. 3d 98 (Fla. 4th DCA 2012) (where 

corporate defendant filed an answer but failed to appear with counsel at 

trial, this court held that a default for failure to defend “may not be 

entered . . . until the defendant is served with notice of the application for 

 

1 It is not clear from the record whether the cardholder attended this hearing, 

and no transcript was provided, but the cardholder does not make any arguments 

regarding the final default judgment hearing. 
3

default and afforded an opportunity to explain.”); Zeigler v. Huston, 626 

So. 2d 1046, 1048 (Fla. 4th DCA 1993) (“[R]ule 1.500(b) requires notice 

and a hearing before entry of default against a party who has filed a paper 

in the action.”) (citing Okeechobee Ins. Agency, Inc. v. Barnett Bank of Palm 

Beach Cnty., 434 So. 2d 334 (Fla. 4th DCA 1983)).

Cases holding that no hearing on a motion for default is required when 

a party merely files a notice of appearance (see Fierro v. Lewis, 388 So. 2d 

1361 (Fla. 5th DCA 1980) and Picchi v. Barnett Bank of S. Florida, N.A.,

521 So. 2d 1090, 1091-92 (Fla. 1988)) are factually distinguishable from 

this case, where the cardholder filed substantive papers before the motion 

for default was filed. See Cardet v. Resolution Trust Corp., 563 So. 2d 167, 

169 (Fla. 3d DCA 1990) (holding that “[o]nce a litigant has appeared and 

is actively defending the main claim, he or she is entitled to notice of all 

hearings, including hearings on a motion for default,” and that Picchi 

“should be confined to the situation there specifically discussed”); Pierce 

Hardy Ltd. P'ship v. Harrison Bros. Contracting, LLC, 13 So. 3d 175, 177 

(Fla. 5th DCA 2009) (Picchi “only held that Florida Rule of Civil Procedure 

1.500(b) does not require a notice of hearing on a motion for default be 

served when the defending party has filed only a notice of appearance.”); 

Ziff v. Stuber, 596 So. 2d 754, 755 (Fla. 4th DCA 1992) (“The filing of a 

nonresponsive ‘paper’ filed as a delaying tactic, such as a notice of 

appearance, is an abuse of process supporting a default entered by the 

court under subsection (b) of the rule [1.500] without notice of hearing.”); 

but see Mesones v. Jabbour, 639 So. 2d 1000, 1002 and n.2 (Fla. 4th DCA 

1994) (Glickstein, J., concurring) (explaining that Picchi was meant to deal 

with lawyers who engage in dilatory tactics, but stating that Picchi, sub 

silentio, overruled Okeechobee). 

To the extent that the default here was entered against the cardholder 

as a sanction for her noncompliance with the circuit court’s order directing 

her to file an answer, the cardholder was entitled to an opportunity to be

heard and show that the noncompliance was not willful or in bad faith 

before the entry of the default. See Clark v. Perlman, 599 So. 2d 710 (Fla. 

1st DCA 1992). In Clark, the defendant responded to the original 

complaint, but failed to comply with the trial court’s order directing her to 

respond to the amended complaint. Id at 710. The plaintiff filed a motion 

for default without serving the defendant with the motion or notice of any 

scheduled hearing, and the trial court entered the default on the same day. 

Id. at 711-12. Thereafter, a hearing was set on the plaintiff’s motion for 

final judgment after default, and the defendant moved to set aside the 

default the day before the hearing. Id. at 712. At the hearing, the trial 

court denied the motion to set aside the default, concluding that the 

defendant had failed to comply with the order and had failed to show good 
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cause or excusable neglect for the non-compliance. Id. The trial court 

entered the default judgment and the defendant appealed. Id.

On appeal, the First District held that because the defendant had 

responded to the original complaint, she had evidenced her intent to 

defend and, “under the liberal construction accorded rule 1.500(b), she 

was entitled to notice of the application for default, and an opportunity to 

be heard on the question of whether her failure to comply with the court's 

order was willful or in bad faith.” Id. See also Rice v. Raymond, 17 So. 3d 

1284, 1285 (Fla. 4th DCA 2009) (citing Int’l Energy Corp. v. Hackett, 687 

So. 2d 941, 943 (Fla. 3d DCA 1997) (“even if the Uniform [pre-trial] Order 

had specifically listed default as a possible sanction for noncompliance, 

notice and opportunity to be heard must still be given to the defending 

party for a determination of whether the noncompliance was willful or in 

bad faith.”); Neder v. Greyhound Fin. Corp., 592 So. 2d 1218, 1218 (Fla. 

1st DCA 1992) (“Florida courts have previously held that the trial court 

may not enter a default judgment for violation of a discovery order without 

notice and an opportunity to be heard on the question of whether the 

failure was willful or in bad faith.”).

Conclusion

“[T]he purpose of the [default] rule is to speed the action toward 

conclusion on the merits where possible, not to expedite litigation by ex 

parte actions and surprise. Further, [r]easonable doubts are resolved in 

favor of granting the application and permitting trial upon the merits.”

Cardet, 563 So. 2d at 168 (internal citations and quotations omitted). 

Here, the judicial default was entered without first affording the cardholder 

the required opportunity to be heard under rule 1.500(b); thus the default, 

and derivatively the final judgment, is void. Viets, 922 So. 2d at 1096. 

Accordingly, we reverse the final judgment and remand for a noticed 

hearing on the bank’s motion for default.

Reversed and remanded.

CIKLIN, C.J., GERBER and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.