MIAMI COMMONWEALTH REALTY CORP., A FLORIDA CORPORATION, APPELLANT,
v.
RINEHART VOLKSWAGEN, INC., A FLORIDA CORPORATION, APPELLEE; RINEHART VOLKSWAGEN, INC., A FLORIDA CORPORATION, APPELLANT, V. MIAMI COMMONWEALTH REALTY CORP., A FLORIDA CORPORATION, APPELLEE
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Florida appellate court reversed denial of motion to set aside default judgment, finding the defendant demonstrated both a meritorious defense and excusable neglect for failure to respond.
A default judgment must be set aside when the defendant demonstrates both a meritorious defense and excusable neglect for the failure to timely respond.
[1] A default judgment may be set aside upon a showing of both a meritorious defense and excusable neglect, with excusable neglect established when process is forwarded to a…
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Join FLexlaw to unlock all legal intelligenceMiami Commonwealth Realty sought recovery of a brokerage commission against Rinehart Volkswagen, Inc., which failed to respond to the summons and comp…
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PER CURIAM.
This consolidated appeal is before us to review the trial court’s order denying the motion of Rinehart Volkswagen, Inc. to set aside the default final judgment and the amended default final judgment entered against it. We reverse the order on the grounds that: (1) the motion, as aided and amended by the deposition and affidavit before the court, indicated that Rinehart Volkswagen, Inc. had demonstrated a meritorious defense to the allegations in the complaint filed by Miami Commonwealth Realty, Corp., which sought recovery of a brokerage commission; and (2) excusable neglect was demonstrated based upon a showing that the summons and complaint had been forwarded to a vice president but not received by the law firm. North Shore Hospital Inc. v. Barber, 143 So. 2d 849 (Fla. 1962); Associated Medical Institutions, Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976); Renuart-Bailey-Cheely Lumber and Supply Company v. Hall, 264 So. 2d 84 (Fla. 3d DCA 1972). A greater showing is required to reverse a trial court’s granting of a motion to vacate a default than is needed to reverse the trial court’s denial of a motion to vacate a default. Garcia Insurance Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977).
Our disposition of this appeal makes it unnecessary to pass upon the remaining issues presented.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pedro Realty Inc. v. Silva, 399 So. 2d 367 (Fla. 3d DCA 1981)…vacated upon a showing of excusable neglect or inadvertence or other meritorious defense. Fla.R.Civ.P. 1.500(d), 1.540(b); North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Miami Commonwealth Realty Corp. v. Rinehart Volkswagen, Inc., 387 So. 2d 530 (Fla.3d DCA 1980); Thomas v. American Vinyl Co., 379 So. 2d 448 (Fla.3d DCA 1980); Associated Medical Institutions, Inc. v. Imperatori, 338 So. 2d 74 (Fla.3d DCA 1976); Acme Fast Freight, Inc., v. Bell, 318 So. 2d 212 (Fla.3d DCA 1975); Rubin v. Bak…
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Nat'l Premium Budget Plan Corp. v. ALL Am. Assurance Co., 389 So. 2d 324 (Fla. 3d DCA 1980)…counsel for the defendant, in possession of the complaint and fully aware of the precariousness of the defendant’s position some four months before entry of the default judgment, compare Miami Commonwealth Realty Corp. v. Rinehart Volkswagen, Inc., 387 So. 2d 530 (Fla. 3d DCA 1980), failed to move to vacate until after judgment was entered and nearly a year after service was effected, the trial court grossly abused its discretion in setting the default and default judgment aside. Reversed.…
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Elec. Eng'g Co., Inc. v. Gen. Elec. Canada, Inc., 610 So. 2d 51 (Fla. 3d DCA 1992)…eah, Inc. v. Adams, 566 So. 2d 350 (Fla. 3d DCA), rev. denied, 576 So. 2d 284 (Fla.1990); S.B. Partners v. Holmes, 479 So. 2d 280 (Fla. 2d DCA1985), rev. denied, 488 So. 2d 68 (Fla.1986); Miami Commonwealth Realty Corp. v. Rinehart Volkswagen, Inc., 387 So. 2d 530 (Fla. 3d DCA1980), (2) the defendant acted with due diligence in moving to set aside the clerk’s default upon learning of the entry of same, see Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA1990); Techvend, Inc. v. Phoenix Network, Inc., 564 So. 2d…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Garcia Ins. Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977)
- Associated Med. Insts., Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976)
- LaNorris Hobbs v. State, 264 So. 2d 84 (Fla. 1st DCA 1972)