WES BRANDT, APPELLANT,
v.
ROBERT H. DOLMAN, APPELLEE
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Brandt appeals from a non-final order denying his motion to set aside a default judgment. The court reversed, holding that Brandt satisfied all prerequisites for relief from default—excusable neglect, a meritorious defense, and due diligence—and thus the motion should have been granted.
The trial court erred in denying the motion to set aside the default. Brandt satisfied all prerequisite conditions for relief: his inaction constituted excusable neglect, he alleged a meritorious defense, and he exercised due diligence by moving to set aside the default within twelve days.
[1] Defaults should be liberally set aside to permit controversies to be determined on their merits.
[2] A movant seeking to set aside a default must establish excusable neglect.
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Join FLexlaw to unlock all legal intelligence“It is well established that under appropriate circumstances courts should liberally set aside defaults so that controversies may be determined on their merits.”
Establishes the foundational principle favoring vacation of defaults to reach the merits
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Join FLexlaw to unlock all legal intelligenceBrandt was named co-defendant in a lawsuit alongside a corporation. Corporate counsel represented both defendants but neglected to file a pleading on …
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HERSEY, Judge.
This appeal arises from a non-final order denying a motion to set aside a default.
Appellant, Brandt, was named co-defendant in an action brought against him and a corporation. An agent of the corporation advised Brandt that its counsel would represent both defendants in the action. Corporate counsel neglected to file a pleading on behalf of Brandt and a default was entered. Twelve days thereafter Brandt moved to set aside the default averring the existence of a bona fide defense. That motion was denied.
It is well established that under appropriate circumstances courts should liberally set aside defaults so that controversies may be determined on their merits. County National Bank of No. Miami Beach v. Sheridan, 403 So. 2d 502 (Fla. 4th DCA 1981); North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). As a prerequisite to relief from a default the movant must establish that his neglect was excusable. Clark v. Roberto’s, Inc., 320 So. 2d 870 (Fla. 4th DCA 1975). Brandt’s inaction here falls within the penumbra of the term “excusable” as it has been applied in these cases. See, e.g., Travelers Insurance Co. v. Bryson, 341 So. 2d 1013 (Fla. 4th DCA 1977); Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla.1977). A meritorious defense must also be alleged. County National Bank of No. Miami Beach v. Sheridan, 403 So. 2d 502 (Fla. 4th DCA 1981). This condition too was satisfied by Brandt.
A third condition precedent which is frequently but not uniformly imposed, is that the movant exercise due diligence upon learning of the default. See, e.g., Westinghouse Credit v. Steven Lake Masonry, 356 So. 2d 1329 (Fla. 4th DCA 1978). Action taken within twelve days as in the instant case clearly meets the criteria of due diligence.
The motion to set aside default should have been granted because the appellant fulfilled all the prerequisite conditions. We therefore reverse the order and remand to permit the trial court to grant vacation of the default. The appellant may then file an appropriate response to the complaint, so that both the claim and the defenses to it may be considered on the merits.
REVERSED and REMANDED.
ANSTEAD and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Glenna Somero and Robert Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985)…faulted party, “a German citizen located in Germany,” may not have been aware of his obligations to make discovery nor was it clear to what extent he “complied or was able to comply with those obligations; _” Id. at 1015. See also Brandt v. Dolman, 421 So. 2d 689 (Fla. 4th DCA 1982) (where corporate counsel filed answer for corporation but inadvertently failed to file a pleading for another individual defendant, trial court’s refusal to set aside default would be reversed). The cases cited to illustrate fin…
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Rosenblatt v. Rosenblatt, 528 So. 2d 74 (Fla. 4th DCA 1988)…considering a motion to set aside a default. See, e.g., North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). A default will be set aside upon a showing of excusable neglect, a meritorious defense, and due diligence. See Brandt v. Dolman, 421 So. 2d 689 (Fla. 4th DCA 1982); Fla.R.Civ.P. 1.500. Here, the appellant-husband was hospitalized twenty-five days after service of process. He had been shot and was paralyzed. The default was entered four days after the injury, and a default judgment was ente…
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Venero v. Balbuena, 652 So. 2d 1271 (Fla. 3d DCA 1995)…be tried on the merits. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). To vacate a default judgment, a meritorious defense, excusable neglect, and due diligence from the time of learning of default must be shown. Brant v. Dolman, 421 So. 2d 689 (Fla. 4th DCA 1982). We find that Venero has met these three requirements. Balbuena admitted that Venero had a meritorious defense, and Venero showed excusable neglect in failing to answer the complaint because he relied upon the insurer’s assuranc…
Previewing 3 of 16 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)
- Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla. 1977)
- Cnty. Nat'l Bank OF N. Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981)
- Travelers Ins. Co. v. Daisey Q. Bryson and Salvatore DeLuca, 341 So. 2d 1013 (Fla. 4th DCA 1977)
- State v. Camper, 356 So. 2d 1329 (Fla. 4th DCA 1978)
- Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978)
- Windhurst v. State, 320 So. 2d 870 (Fla. 4th DCA 1975)