MIAMI STEEL TRADERS, INC., APPELLANT,
v.
RYDER TRUCK LINES, INC., A CORPORATION, RANGER DIVISION, APPELLEE
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Miami Steel Traders appealed the trial court's denial of its motion to vacate a default judgment. The court held that while a defendant may file a late answer to prevent default before a default hearing, this does not excuse failure to timely file an answer under the civil procedure rules, and the defendant's counsel's dilatory tactics and subsequent mislaid notice did not constitute excusable neglect warranting relief.
The court held that a defendant's excusable neglect regarding failure to file an answer before a default hearing does not excuse failure to timely comply with the 20-day answer requirement under Florida Rule of Civil Procedure 1.140, and counsel's strategic delay in filing an answer cannot be bootstrapped into excusable neglect to justify relief from default judgment.
[1] A notice of appearance, while preventing immediate default, does not excuse the timely filing of an answer or responsive pleading.
[2] A defendant's failure to file an answer within the time prescribed by rule, even if a late answer could be filed before a default hearing, may not be excused by a showing…
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Join FLexlaw to unlock all legal intelligence“While Rule 1.500(c) permits a defendant to prevent default by the filing of a late answer on the eve of the default hearing, the existence of this rule does not supplant the requirement of Florida Rule of Civil Procedure 1.140 that an answer be filed within twenty days from the service of the summons and complaint.”
Establishes that the safe harbor for filing late answers does not excuse the underlying obligation to file timely answers under the rules.
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Join FLexlaw to unlock all legal intelligenceMiami Steel Traders was served with a summons and complaint in August 1980 but did not file an answer. Instead, counsel filed a notice of appearance 4…
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DANIEL S. PEARSON, Judge.
When in August 1980, Miami Steel Traders, Inc. was served with a summons and complaint, its counsel eschewed answering and instead, forty days later, filed a notice of appearance. Admittedly aware that the filing of this paper guaranteed that no default could be entered against the defendant unless its counsel was first notified of the application for default, see Fla.R.Civ.P. 1.500(b), and that the filing of an answer or responsive pleading before the default hearing would preclude default, see Fla.R.Civ.P. 1.500(c); Freedman v. Freedman, 235 So. 2d 544 (Fla.3d DCA 1970), defense counsel, through the device of filing an appearance, effectively postponed the already long overdue response until Ryder applied for default, at which time defense counsel intended to cure his failure to respond to the complaint.
In late October 1980, Ryder moved for default and notified counsel for Miami Steel Traders, Inc. of its application. At this point, defense counsel’s best laid plans went awry — he mislaid and failed to calender the notice. Default and final judgment were entered. In December 1980, defense counsel, awakened (but not fully) more than a month earlier, by the threat of imminent execution on his client’s property, moved to vacate the default and final judgment. The trial court denied the requested relief, and the defendant appealed.
It is abundantly clear that the defendant’s proffer of excusable neglect went only to his failure to file an answer before the hearing on the plaintiff’s motion for default, held more than two months after the complaint was served and a month after the answer was due. No excusable neglect relating to the defendant’s failure to file the answer when it was due was shown.
While Rule 1.500(c) permits a defendant to prevent default by the filing of a late answer on the eve of the default hearing, the existence of this rule does not supplant the requirement of Florida Rule of Civil Procedure 1.140 that an answer be filed within twenty days from the service of the summons and complaint. A showing of excusable neglect to comply with Rule 1.500(c) cannot be bootstrapped into a showing of excusable neglect to comply with Rule 1.140.
The defendant has been hoist with its counsel’s own petard, and we will not pick up the pieces.
Affirmed.
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Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982)…y on the progress docket of the action taken. . See Travelers Ins. Co. v. Bryson, 341 So. 2d 1013 (Fla. 4th DCA 1977); and Board of Regents v. Hardin, 393 So. 2d 1134 (Fla. 1st DCA 1981). . See Miami Steel Traders, Inc. v. Ryder Truck Lines, Inc., 401 So. 2d 1146 (Fla. 3d DCA 1981). . Florida Rule of Civil Procedure 1.500(a) provides for defaults: By the Clerk. When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the c…
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Cohen v. Barnett Bank OF S. Fla., N.A., 433 So. 2d 1354 (Fla. 3d DCA 1983)…appearance” ploy they have engendered, see Bowman v. Kingsland Development, Inc., 432 So. 2d 660, n. 1 (Fla. 5th DCA 1983); Leon Shaffer Advertising v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982); Miami Steel Traders, Inc. v. Ryder Truck Lines, Inc., 401 So. 2d 1146 (Fla. 3d DCA 1981), counsel have the right to rely upon and we have the duty to apply these provisions as they now exist. Freedman v. Freedman, 235 So. 2d 544 (Fla. 3d DCA 1970), cert. denied, 241 So. 2d 859 (Fla.1970). In the present situation, it…
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Anthony Abraham Leasing, Inc. v. Developers OF Am. Corp., 506 So. 2d 59 (Fla. 3d DCA 1987)…er of excusable neglect which led to the entry of the default and consequent default judgment, National Premium Budget Plan Corp. v. All American Assurance Co., 389 So. 2d 324 (Fla. 3d DCA 1980); Miami Steel Traders, Inc. v. Ryder Truck Lines, Inc., 401 So. 2d 1146 (Fla. 3d DCA 1981), or of due diligence in seeking to set them aside. See Cricket Club, Inc. v. Basso, 384 So. 2d 908 (Fla. 3d DCA 1980); B.R. Fries & Associates v. Meagher, 448 So. 2d 1211 (Fla. 3d DCA 1984), pet. for review denied, 453 So. 2d 1364…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Freedman v. Freedman, 235 So. 2d 544 (Fla. 3d DCA 1970)