COLBY MATERIALS, INC
vs.
CALDWELL CONSTRUCTION, INC
Supreme Court of Florida
____________
No. SC04-774
____________
COLBY MATERIALS, INC.,
Petitioner,
vs.
CALDWELL CONSTRUCTION, INC.,
Respondent.
[March 16, 2006]
ANSTEAD, J.
We have for review the decision in Colby Materials, Inc. v. Caldwell Construction Inc., 868 So. 2d 584 (Fla. 5th DCA 2004), which expressly and directly conflicts with the decision in Torrey v. Leesburg Regional Medical Center, 769 So. 2d 1040 (Fla. 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set forth below, we quash the decision of the Fifth District Court of Appeal and remand for further proceedings consistent with this opinion and our opinion in Torrey.
FACTS AND PROCEEDINGS BELOW
The facts and circumstances of this case leading up to this review appear in the Fifth District's opinion:
Caldwell Construction filed suit against Colby Materials seeking reimbursement for an alleged double payment in connection with a construction contract executed by the parties. Colby Materials responded by filing a motion to strike the complaint and a motion to dismiss the action. However, both of the motions were prepared and filed pro se by the owner of Colby Materials, not by a licensed attorney. Caldwell Construction filed a motion to strike the motions as being unauthorized and filed a separate motion for default based on the fact that Colby Materials had failed to properly respond to its complaint. Colby Materials filed a response to the motion to strike. The response was prepared by a licensed attorney, and requested that the trial court deny the motion for default and permit counsel a reasonable time to respond to the complaint. However, Colby Materials filed no affidavits in opposition to the motion for default, establishing a valid excuse for not properly responding to the complaint nor a proposed responsive pleading. The trial court conducted a hearing on the pending motions. Upon review, the trial court entered an order granting the motion to strike and the motion for default and, thereafter, entered a final judgment in favor of Caldwell Construction.
Colby Materials, Inc., 868 So. 2d at 584-85 (emphasis supplied). On appeal, the Fifth District affirmed the trial court's entry of a default and final judgment due to Colby's failure to properly respond to the complaint in a timely manner, as alleged in Caldwell's motions to strike and for default. Id. at 585.
ANALYSIS
In seeking to invoke this Court's discretionary conflict jurisdiction, Colby Materials cites conflict with our decision in Torrey, in which we rejected the notion that a filing by an unlicensed attorney should be treated as a nullity. We concluded that â€
