JEAN E. SAVELA AND TWO WICKERED WOMEN OF NAPLES, INC., APPELLANTS,
v.
JAMES FISHER, APPELLEE
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Defendants appealed from a final judgment of $15,000 entered against them following entry of default. The court reversed, holding that defendants established both excusable neglect and meritorious defenses entitling them to have the defaults set aside.
The court held that defendants were entitled to have the defaults set aside because they established both a legal excuse for their failure to comply with the Florida Rules of Civil Procedure (excusable neglect arising from clerical error and miscommunication) and meritorious defenses.
[1] Defaults may be set aside upon a showing of both excusable neglect for failure to comply with procedural rules and a meritorious defense.
[2] Excusable neglect may be established by evidence of inadvertent clerical or secretarial error that leads to a failure to timely respond, provided there is no substantial…
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Join FLexlaw to unlock all legal intelligence“Defendants were entitled to have the defaults set aside if they showed "both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense."”
Establishes the legal standard for setting aside defaults in Florida
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Join FLexlaw to unlock all legal intelligenceSummonses were served on defendants on February 4, 1983, but due to miscommunication between the delivery service, the law firm's secretary, and the a…
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LEHAN, Judge.
Two defendants appeal from a final judgment entered against them in the sum of $15,000. They contend that the trial court erred in failing to set aside defaults entered against them. We reverse.
While the record and pleadings are not models of clarity, we have, in the interests of justice, made certain determinations as to what occurred.
On February 25, 1983, one day after the expiration of 20 days from the service of summonses on these defendants, plaintiff obtained entry of default by the clerk against them. Contrary to defendants’ initial contentions to the trial court, their re sponses, i.e., their motions directed to the complaint, had been untimely served as shown by the postmark dated February 25, 1983 P.M.
On March 14, 1983, the two defendants filed a motion to set aside the defaults. Plaintiff thereafter filed a motion called Motion for Judgment on the Pleadings, which we shall treat as a motion for final default judgment.
The trial court entered a judgment on the pleadings against defendants, which we shall treat as a final default judgment on liability. Subsequently the trial court entered the foregoing final judgment from which defendants appeal and which noted the prior entry of the judgment on the pleadings. We shall treat this final judgment as a denial of the motion to set aside the defaults.
Defendants were entitled to have the defaults set aside if they showed “both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense.” Kapetanopoulos v. Herbert, 449 So. 2d 947, 949 (Fla. 2d DCA 1984), quoting from Westinghouse Elevator Co. v. DFS Construction Co., 438 So. 2d 125, 126 (Fla. 2d DCA 1983). We believe they have made the requisite showings in this case.
The motion to set aside the defaults alleged, in essence, that the failure to timely file responses resulted from the inadvertent failure of defendants’ attorneys to perceive that the summonses served upon defendants had been served on February 4th, several days prior to the February 8th service of another summons in the same case upon a third defendant whom the attorneys also represented (and who was not in default).
The later served summons on that third defendant was delivered to the attorneys before delivery of the summonses against these defendants involved in this appeal. When the summonses against these defendants were delivered to the attorneys, there was a failure of communication between the persons delivering the summonses, the attorneys’ secretary, and the attorneys. The assumption was then mistakenly made that those later delivered summonses had been served at the same time as the earlier delivered but actually later served summons on the third defendant. All defendants were involved in one business enterprise which was represented by the attorneys. The attorneys thereafter filed on behalf of all three defendants responses, including the foregoing responses of appellants, which would have been timely served had the foregoing assumption been valid.
We conclude that the allegations in the motion to set aside defaults, which set forth the above occurrences and which are supported by an affidavit of the attorney principally involved, sufficiently established excusable neglect. See Florida Aviation Academy v. Charter Air Center, Inc., 449 So. 2d 350 (Fla. 1st DCA 1984). Florida Aviation is one of a line of cases recognizing an avenue of relief available to a defaulted party where clerical or secretarial error was the cause of the default and there was no substantial prejudice to the opposing party. See also Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983); County National Bank of North Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981).
The motion to set aside defaults also asserted defenses on defendant’s behalf. We cannot say that those defenses, if proved, are not meritorious.
Reversed and remanded for proceedings consistent herewith.
RYDER, C.J., and FRANK, J., concur.
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S.B. P'rs v. Holmes, 479 So. 2d 280 (Fla. 2d DCA 1985)…titude on the part of appellant, we cannot say that they demonstrate culpable or gross negligence. See B.C. Builders Supply Co., 405 So. 2d at 1347. Nor can we say that appellees have been substantially prejudiced by the delay. See Savela v. Fisher, 464 So. 2d 240, 241 (Fla. 2d DCA 1985). Indeed, under these facts, we think it would be a gross abuse of discretion not to allow appellant to present its defenses. B.C. Builders Supply Co., 405 So. 2d at 1347. See also Garcia Insurance Agency, Inc., 351 So. 2d at…
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Miami-Dade Cnty. v. Coral BAY Section C Homeowners Ass'n, Inc., 979 So. 2d 318 (Fla. 3d DCA 2008)…d 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. Fisher, 464 So. 2d 240 (Fla. 2d DCA 1985). As the court correctly summarized the law in Zimmerman v. Vinylgrain Industries of Jacksonville, Inc., 464 So. 2d 1353 (Fla. 1st DCA 1985): The Florida Supreme Court has established a policy of providing relief from defaults and…
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Rhines v. Rhines, 483 So. 2d 4 (Fla. 2d DCA 1985)…he situations in Fratus v. Fratus, 467 So. 2d 484 (Fla. 5th DCA 1985), and American Agronomics Corp. v. Varner, 413 So. 2d 484 (Fla. 2d DCA 1982), cited in the dissenting opinion in this case, as well as in contrast to the facts of Savela v. Fisher, 464 So. 2d 240 (Fla. 2d DCA 1985), the husband’s default was not attributable in any way to the actions or nonactions of an attorney. The husband, who has ably argued on his own behalf to this court, relied solely upon himself. Also, in contrast to American Agrono…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Westinghouse Elevator Co. v. DFS Constr. Co. & Fed. Ins. Co., 438 So. 2d 125 (Fla. 2d DCA 1983)
- Cnty. Nat'l Bank OF N. Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981)
- Fla. Aviation Acad. v. Charter AIR Ctr., Inc., 449 So. 2d 350 (Fla. 1st DCA 1984)
- Broward Cnty. v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983)
- S. Trail Fire Control Dist. & Nationwide Ins. Co. v. Johnson, 449 So. 2d 947 (Fla. 1st DCA 1984)
- Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984)