NATHAN WIEN AND ELIZABETH WIEN, APPELLANTS,
v.
QUAYSIDE REALTY, INC., APPELLEE
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The Florida District Court of Appeal reversed a default judgment entered against defendants who were served in New York, finding that the trial court erred in refusing to set aside the default where the defendants filed responsive motions within days of learning of the judgment and satisfied all requirements for relief.
The trial court incorrectly refused to set aside the default judgment. Because the defendants satisfied the requirements of a meritorious defense, excusable neglect, due diligence, and the demands of justice, the default judgment must be set aside.
[1] A default and default judgment should be set aside when the requirements of a meritorious defense, excusable neglect, due diligence, and the demands of justice are satisf…
[2] Florida policy favors determining cases on their merits, which supports setting aside defaults under appropriate circumstances.
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Join FLexlaw to unlock all legal intelligence“In the light cast by Florida's established and salutary policy in favor of determining cases on their merits”
Establishes the foundational policy underlying the court's decision to reverse the default judgment
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Join FLexlaw to unlock all legal intelligenceNathan and Elizabeth Wien sued Quayside Realty, Inc. Defendants were served with process in Brooklyn, New York on April 24, 1984. The affidavits of se…
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SCHWARTZ, Chief Judge.
In the light cast by Florida’s established and salutary policy in favor of determining cases on their merits, Bland v. Viking Fire Protection, Inc. of the Southeast, 454 So. 2d 763 (Fla. 2d DCA 1984); Burbank v. Southland Corp., 345 So. 2d 1108 (Fla. 1st DCA 1977), it is clear that the trial court incorrectly refused to set aside a default and default judgment entered no more than forty days after the defendants had been served in Brooklyn, New York.1 The record shows that the filing of the affidavits of service — which awakened the case from its previous dormancy, Klosenski v. Flaherty, 116 So. 2d 767, 769 (Fla.1959)— did not occur until more than twenty days after service, but see sec. 48.194, Fla.Stat. (1983); Fla.R.Civ.P. 1.070(b); Klosenski v. Flaherty, 110 So. 2d 685, 686 (Fla. 3d DCA 1959), quashed in part on other grounds, 116 So. 2d 767 (Fla.1959), and that Florida defense counsel, who had been monitoring the action, filed motions to dismiss and to set aside the default very shortly after the filing had come to their attention2 and within two and four days respectively of the default. Since, on these facts, the requirements of a meritorious defense, excusable — if any — neglect, due diligence, and, most important of all, the demands of justice, have all been satisfied, the default may not be permitted to stand. Huerta v. Saphin, 459 So. 2d 438 (Fla. 3d DCA 1984); B.C. Builders Supply Co., Inc. v. Maldo nado, 405 So. 2d 1345 (Fla. 3d DCA 1981); McAlice v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979).
Reversed.
. Service took place on April 24, 1984. The affidavits of service and an ex parte motion for default were simultaneously filed with the clerk of the lower court on May 23, 1984. On June 1, 1984, the trial judge entered a default judgment (for the $8,400 liquidated amount demanded) which was filed on June 4, 1984. The defendant filed a motion to dismiss on June 6, and a motion to set aside the default with accompanying affidavits on June 8, 1984.
. We take notice that a period of at least several days may elapse between the execution of an order or the filing of a paper and its appearance on the docket sheet and in the court file.
Cases With Similar Vibessemantic neighbors from the corpus
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Reicheinbach v. Se. Bank, N.A., 462 So. 2d 611 (Fla. 3d DCA 1985)…, 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 (Fla. 3d DCA 1985); Perdue; American Republic Insurance Co. v. Westchester General Hospital; 414 So. 2d 1163 (Fla. 3d DCA 1982); Dillon v. Machinery Wholesalers Corp., 414 So. 2d 1094 (Fla. 3d DCA 1982). We are aware that appellant has failed to de…
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Miami-Dade Cnty. v. Coral BAY Section C Homeowners Ass'n, Inc., 979 So. 2d 318 (Fla. 3d DCA 2008)…. 2d 457, 458 (Fla. 3d DCA 1985), we observed: We conclude, as we have repeatedly in similar instances in the recent past, that the trial court’s failure to set the default aside was a clear abuse of discretion. E.g., Wien v. Quayside Realty, Inc., 462 So. 2d 569 (Fla. 3d DCA 1985) and cases cited; Huerta v. Saphin, 459 So. 2d 438 (Fla. 3d DCA 1984); B.C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981); see North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Savela v.…
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Kuehne & Nagel, Inc. v. Esser Int'l, Inc., 467 So. 2d 457 (Fla. 3d DCA 1985)…ummons from counsel’s desk and filed them away. We conclude, as we have repeatedly in similar instances in the recent past, that the trial court’s failure to set the default aside was a clear abuse of discretion. E.g., Wien v. Quayside Realty, Inc., 462 So. 2d 569 (Fla. 3d DCA 1985) and cases cited; Huerta v. Sapkin, 459 So. 2d 438 (Fla. 3d DCA 1984); B.C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981); see North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Savela v.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)
- Klosenski v. Flaherty, 116 So. 2d 767 (Fla. 1959)
- McALICE v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979)
- Bland v. Viking Fire Prot., 454 So. 2d 763 (Fla. 2d DCA 1984)
- Burbank v. The Southland Corp., 345 So. 2d 1108 (Fla. 1st DCA 1977)
- Klosenski v. Flaherty, 110 So. 2d 685 (Fla. 3d DCA 1959)
- F. Rene de la Huerta, M.D. v. Saphin, 459 So. 2d 438 (Fla. 3d DCA 1984)