ROY ZWICKEL, APPELLANT,
v.
KLC, INC., A FLORIDA CORPORATION, APPELLEE
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The court held that the trial court abused its discretion in denying the motion to set aside the default because the attorney's confusion regarding companion cases constituted excusable neglect.
Default was entered against Zwickel, who then filed an answer and a motion to vacate the default. The motion was supported by an affidavit explaining …
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PER CURIAM.
The counterdefendant, Zwickel, appeals an order denying his motion to set aside a default. We reverse.
Default was entered in this cause on September 5, 1984. Two days later, Zwick-el filed his answer which denied most of the allegations in the counterclaim and contained an affirmative defense. He then proceeded with due diligence in filing a motion to vacate the default pursuant to Florida Rule of Civil Procedure 1.540 on September 13, 1984. The motion was accompanied by an affidavit of Zwickel’s attorney which established that a response had not been timely filed in the action because of the attorney’s confusion over the interrelationship between the present case and a companion case which had been settled. The attorney believed that the resolution of the companion case had resolved the present case as well.
A failure to timely respond in an action should be considered excusable where it is due to confusion which reasonably exists as a result of the pendency of two or more eases involving the same or related parties or subject matters. See State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40 (1931); Nasrallah v. Scheuermann, 424 So. 2d 974 (Fla. 4th DCA 1983); American Agronomics Corp. v. Varner, 413 So. 2d 484 (Fla. 2d DCA 1982); Cunningham v. White, 390 So. 2d 467 (Fla. 3d DCA 1980). In the present case, the affidavit established Zwickel’s at torney’s confusion over the two companion cases. On the record before us, we find the attorney’s confusion was not unreasonable, especially in light of the fact that the cases involved substantially the same parties and transaction and the case numbers had been used together by both the opposing party (on a motion for continuance) and the trial court (on a pre-trial order) in proceedings in the companion case.
Accordingly, it was an abuse of discretion for the trial court to deny Zwickel’s motion to set aside the default. Reversed and remanded for further proceedings.
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Szucs v. Qualico Dev., Inc., 893 So. 2d 708 (Fla. 2d DCA 2005)…gainst Pittway. He cites cases that involved the pendency of two or more cases involving the same or related parties. See Okeechobee Imports, Inc. v. Am. Sav. & Loan Ass’n of Fla., 558 So. 2d [*711] 506, 507 (Fla. 3d DCA 1990); Zwickel v. KLC, Inc., 464 So. 2d 1280, 1280 (Fla. 3d DCA 1985). Okeechobee Imports and Zioickel involved multiple lawsuits, misfil-ings, and confusion over similar transactions and case numbers, facts not present here. No multiple lawsuits exist in this case. Qualico filed three complai…
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Okeechobee Imports, Inc. v. Am. Sav. & Loan Ass'n OF Fla., 558 So. 2d 506 (Fla. 3d DCA 1990)…ilure to timely respond in an action should be considered excusable where it is due to confusion which reasonably exists as a result of the pendency of two or more cases involving the same or related parties or subject matters. Zwickel v. KLC, Inc., 464 So. 2d 1280 (Fla. 3d DCA 1985); see State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40 (1931); Foundation Well Point Corp. v. Bauman, 437 So. 2d 729 (Fla. 3d DCA 1983), review denied, 447 So. 2d 885 (Fla.1984); Cunningham v. White, 390 So. 2d 467 (Fl…
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R.H. v. Dep't of Child. & Fam. Servs., 860 So. 2d 986 (Fla. 3d DCA 2003)…default judgment where corporate director was served with summons and complaint, but failed to deliver them to counsel because he was under mistaken belief that they were duplicate papers served in unrelated lawsuit). See also Zwickel v. KLC, Inc., 464 So. 2d 1280, 1280 (Fla. 3d DCA 1985) (“A failure to timely respond in an action should be considered excusable where it is due to confusion which reasonably exists.... ”). Not only did the trial court here find that the father’s actions did not amount to a sho…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State Bank of Eau Gallie v. Raymond, 103 Fla. 649 (Fla. 1931)
- Cunningham v. Clancie White and Essie White, 390 So. 2d 467 (Fla. 3d DCA 1980)
- Am. Agronomics Corp. v. Varner, 413 So. 2d 484 (Fla. 2d DCA 1982)
- Nasrallah v. Scheuermann, 424 So. 2d 974 (Fla. 4th DCA 1983)