On November 28, 2012 a
Motion-Secondary
was filed
involving a dispute between
Wilkie, Suzanne,
and
Department Of Financial Services,
Attwater, Jeff,
Carroll, Kevin,
for Declaratory Judgment
in the District Court of Broward County.
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Filing # 28313367 E-Filed 06/10/2015 12:12:35 PM
IN THE CIRCUIT COURT
OF THE SEVENTEENTH JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, FLORIDA
SUZANNE WILKIE,
Plaintiff,
v. CASE NO. CACE-12-033063-14
JUDGE KEVIN CARROLL OF LEON COUNTY.
CIRCUIT COURT JUDGE; and
FLORIDA DEPARTMENT OF FINANCIAL
SERVICES, JEFF ATWATER,
as CHIEF FINANCIAL OFFICER
Respondents.
/
DEPARTMENT OF FINANCIAL SERVICES’ RESPONSE IN OPPOSITION
TO MOTION FOR DEFAULT
State of Florida Department of Financial Services (“Department”), pursuant to Fla. R.
Civ. P. 1,100(a) and 1.500(c), moves the Court to deny the motion for default served June 8,
2015, because the amended complaint of the Plaintiff Suzanne Wilkie was never served on the
Department prior to the filing of her Motion to Default. The Court is shown as follows:
1. “A total lack of service of process renders a judgment void, not voidable.” Kathleen
G. Kozinski, P_A. v. Phillips, 126 So. 3d 1264, 1268 (Fla. 4th DCA 2013). Therefore, failure to
properly serve a complaint forecloses default judgment against a defendant. See H & F Tires, L.
P. v. D. Gladis Co., Inc., 981 So. 2d 647, 651 (Fla. 4th DCA 2008). Because the Department was
never served with a copy of the amended complaint, a default judgment cannot be entered.
2. “Where an answer is filed before the hearing on the motion for default, the trial
court is without authority to default a defendant because of his failure to answer.” Carillon C ‘orp.
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 6/10/2015 12:12:35 PM.****y. Devick, 554 So. 2d 630, 632 (Fla. 4th DCA 1989). The Motion to Dismiss, filed on June 10,
2015, accordingly precludes entry of a default against the Department.
WHEREFORE, the Department respectfully requests that the Motion for Default be
denied.
Respectfully submitted.
ios A. Haskins
Assistant General Counsel
Department of Financial Services
200 East Gaines Street
Tallahassee, FL 32399-4247
Fla. Bar #191637
Phone: 850-413-4110
Fax: 850-413-3029
jesse-haskins@m yfloridacfo.com
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing motion was served by e-mail and U.S. Mail to
Kenneth D. Cooper, at 400 S.E. gn Street, Fort Lauderdale, FL 33316, kcooper543@aol.com,
and to Assistant Attorney General Blaine Winship, Office of the Attomey General, PL-01, The
Capitol, Tallahassee, FL 32399-1050, Blaine. Winship@myfloridalegal.com on this 10" day of
June, 2015.
Jesse A. Haskins
— ene Wn
Document Filed Date
June 10, 2015
Case Filing Date
November 28, 2012
Category
Declaratory Judgment
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Filing # 28313367 E-Filed 06/10/2015 12:12:35 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA SUZANNE WILKIE, Plaintiff, v. CASE NO. CACE-12-033063-14 JUDGE KEVIN CARROLL OF LEON COUNTY. CIRCUIT COURT JUDGE; and FLORIDA DEPARTMENT OF FINANCIAL SERVICES, JEFF ATWATER, as CHIEF FINANCIAL OFFICER Respondents. / DEPARTMENT OF FINANCIAL SERVICES’ RESPONSE IN OPPOSITION TO MOTION FOR DEFAULT State of Florida Department of Financial Services (“Department”), pursuant to Fla. R. Civ. P. 1,100(a) and 1.500(c), moves the Court to deny the motion for default served June 8, 2015, because the amended complaint of the Plaintiff Suzanne Wilkie was never served on the Department prior to the filing of her Motion to Default. The Court is shown as follows: 1. “A total lack of service of process renders a judgment void, not voidable.” Kathleen G. Kozinski, P_A. v. Phillips, 126 So. 3d 1264, 1268 (Fla. 4th DCA 2013). Therefore, failure to properly serve a complaint forecloses default judgment against a defendant. See H & F Tires, L. P. v. D. Gladis Co., Inc., 981 So. 2d 647, 651 (Fla. 4th DCA 2008). Because the Department was never served with a copy of the amended complaint, a default judgment cannot be entered. 2. “Where an answer is filed before the hearing on the motion for default, the trial court is without authority to default a defendant because of his failure to answer.” Carillon C ‘orp. *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 6/10/2015 12:12:35 PM.****y. Devick, 554 So. 2d 630, 632 (Fla. 4th DCA 1989). The Motion to Dismiss, filed on June 10, 2015, accordingly precludes entry of a default against the Department. WHEREFORE, the Department respectfully requests that the Motion for Default be denied. Respectfully submitted. ios A. Haskins Assistant General Counsel Department of Financial Services 200 East Gaines Street Tallahassee, FL 32399-4247 Fla. Bar #191637 Phone: 850-413-4110 Fax: 850-413-3029 jesse-haskins@m yfloridacfo.com CERTIFICATE OF SERVICE I certify that a true copy of the foregoing motion was served by e-mail and U.S. Mail to Kenneth D. Cooper, at 400 S.E. gn Street, Fort Lauderdale, FL 33316, kcooper543@aol.com, and to Assistant Attorney General Blaine Winship, Office of the Attomey General, PL-01, The Capitol, Tallahassee, FL 32399-1050, Blaine. Winship@myfloridalegal.com on this 10" day of June, 2015. Jesse A. Haskins — ene Wn