BROWARD COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLANT,
v.
NORMA PERDUE AND EARL L. PERDUE, HER HUSBAND, APPELLEES
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Broward County appealed the trial court's denial of its motion to set aside a default judgment entered due to a clerical error where court documents were accidentally misfiled. The appellate court reversed, holding that the trial court abused its discretion by refusing to vacate the default when all three statutory elements for relief were satisfied.
Yes. The trial court abused its discretion by denying the motion to set aside the default. All three required elements for vacating a default were satisfied: the neglect was excusable (clerical/secretarial error with no substantial prejudice to plaintiff), there was a meritorious defense, and the county exercised due diligence by immediately filing responsive pleadings upon learning of the default.
[1] A trial court abuses its discretion by refusing to set aside a default judgment when the default was caused by a clerical error and the movant demonstrates excusable negl…
[2] Judicial policy favors a trial on the merits, and trial courts should generally exercise discretion in favor of setting aside defaults when reasonable doubt exists and no…
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Join FLexlaw to unlock all legal intelligence“It is the judicial policy of this state to be reasonably liberal in granting motions to set aside defaults.”
Establishes the foundational policy favoring vacation of defaults to permit resolution on the merits
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Join FLexlaw to unlock all legal intelligenceA summons and complaint were served on Broward County Commissioner Marcia Beach, who forwarded them to the county's chief trial counsel and risk manag…
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HURLEY, Judge.
The issue here is whether the trial court abused its discretion by refusing to set aside a default which was incurred as a result of a clerical error. We answer in the affirmative and reverse.
The facts of the case are relatively simple. A summons and complaint were served upon Broward County Commissioner Marcia Beach. Commissioner Beach transmitted the documents to the county’s chief trial counsel who reviewed the allegations, determined the availability of insurance coverage, and forwarded the documents to the county’s risk management division for defense.
For reasons which will be explained in a moment, the county failed to file a timely responsive pleading which occasioned the entry of a default. Shortly thereafter, the plaintiffs filed a pleading styled, “Notice to Set for Jury Trial After Default.” The county responded immediately by filing (1) a motion to set aside default, (2) a proposed answer and affirmative defenses, (3) a motion to dismiss the complaint and (4) various supporting affidavits. Testimony at a subsequent evidentiary hearing revealed that the summons and complaint had been inadvertently paper clipped to the back of another file and then replaced in a file cabinet. Irrespective of this undisputed showing, the trial court denied the county’s motion to set aside the default.
It is the judicial policy of this state to be reasonably liberal in granting motions to set aside defaults. Schmitz v. Ryan, 427 So. 2d 1013 (Fla. 2d DCA 1983). This policy reflects an ingrained preference for a trial on the merits and, therefore, “in a case of reasonable doubt, where there has been no trial upon the merits, ... [a trial court’s] discretion is usually exercised in favor of granting the application so as to permit a determination of the controversy upon the merits.” North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 852 (Fla.1962) (quoting Coggin v. Barfield, 150 Fla. 551, 8 So. 2d 9 (1942)). To succeed on a motion to vacate a default, a movant must demonstrate that (1) the neglect is excusable, (2) there is a meritorious defense and (3) there has been an exercise of due diligence to seek relief upon learning of the default. Farmers Production Credit Ass’n v. Emperador Seafood, Inc., 416 So. 2d 889 (Fla. 4th DCA 1982). In our view, all three elements were satisfied in the case at bar. Although each case must be evaluated on its own facts, clerical or secretarial error has usually been found to constitute excusable neglect where there has been no substantial prejudice to the plaintiff. See County National Bank v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981). Here, the county immediately filed a proposed answer with affirmative defenses upon receipt of the plaintiffs’ motion to set the cause for trial on damages. Thus, the county also satisfied elements two and three.
Accordingly, we conclude that the trial court’s denial of the county’s motion to vacate the default constitutes a gross abuse of discretion which requires reversal. In light of this decision, we need not pass upon the propriety of the trial court’s denial of the county’s motion to dismiss. However, on remand, we direct the trial court to permit the county to reassert its motion to dismiss for failure to comply with Section 768.28(6), Florida Statutes (1981).
REVERSED AND REMANDED for further proceedings consistent with this opinion.
DOWNEY and ANSTEAD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
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Glenna Somero and Robert Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985)…e to the defaulted party in those instances in which clerical or secretarial error has been demonstrated, and the presence of substantial prejudice to the opposing party is lacking.” Id. at 353 (citation omitted). Again in Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983), the trial court was reversed for refusing to set aside a default where the summons and complaint had inadvertently been clipped to the back of a file and replaced in the filing cabinet. In Schmitz v. Ryan, 427 So. 2d 1013 (Fla.…
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Reicheinbach v. Se. Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985)…appellant to notice of default proceedings. Our holding accords with the liberal policy of Florida courts to grant motions to set aside defaults. See, e.g., North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983); Schmitz v. Ryan, 427 So. 2d 1013 (Fla. 2d DCA 1983). Reasonable doubts are resolved in favor of granting the application and permitting trial upon the merits. North Shore Hospital; Wien v. Quayside Realty, Inc., 462 So. 2d 569 (…
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Fla. Aviation Acad. v. Charter AIR Ctr., Inc., 449 So. 2d 350 (Fla. 1st DCA 1984)…an avenue of relief is available to the defaulted party in those instances in which clerical or secretarial error has been demonstrated, and the presence of substantial prejudice to the opposing party is lacking. See e.g., Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983) (excusable neglect found upon a showing that responsive pleading was not timely filed because the summons and complaint had been inadvertently clipped to the back of another file and replaced in the file cabinet); County National…
Previewing 3 of 20 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)
- Coggin v. Barfield, 150 Fla. 551 (Fla. 1942)
- Cnty. Nat'l Bank OF N. Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981)
- Etienne v. Irvin, 45 Fla. L. Weekly D2032 (Fla. 3d DCA 2020)
- Farmers Prod. Credit Ass'n v. Emperador Seafoods, Inc., 416 So. 2d 889 (Fla. 4th DCA 1982)
- Schmitz v. Ryan, 427 So. 2d 1013 (Fla. 2d DCA 1983)