MARINE OUTLET, A FLORIDA PARTNERSHIP, MARINE OUTLET, INC., A FLORIDA CORPORATION AND MARINE OUTLET SALES, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
MABEL MINER AND RUTH ZACHARIE, APPELLEES
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Marine Outlet appeals the trial court's denial of its motion to vacate a clerk's default in a personal injury case brought by two elderly women injured by a dog attack. The appellate court held that the trial judge abused his discretion by refusing to vacate the default, finding that Marine Outlet had demonstrated both excusable neglect and a meritorious defense.
The trial court abused its discretion in refusing to vacate the default. Marine Outlet satisfied both requirements for vacating a default: (1) excusable neglect, as demonstrated by the trial court's finding that the insurance adjuster believed no default would be taken, and (2) a meritorious defense, as evidenced by affidavits raising questions about the identity of the attacking dog.
[1] A party seeking to set aside a default must demonstrate both excusable neglect and a meritorious defense.
[2] A party's mistaken belief, based on a conversation with opposing counsel's secretary regarding an extension of time to file an answer, may constitute excusable neglect.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To justify setting aside a default, the defaulted party must show both excusable neglect and a meritorious defense.”
States the legal standard governing when a court may vacate a clerk's default.
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Join FLexlaw to unlock all legal intelligenceMabel Miner, age 73, and Ruth Zacharie, age 75, were injured when attacked by a German shepherd dog while riding their adult tricycles on a street adj…
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RYDER, Chief Judge.
Marine Outlet, Marine Outlet, Inc. and Marine Outlet Sales, Inc., defendants below, appeal the trial court’s denial of their motion to vacate a clerk’s default. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). Silva v. Pedro Realty, Inc., 411 So. 2d 872 (Fla.1982); Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So. 2d 190 (Fla.1982).
• Mabel Miner, age 73, and her sister, Ruth Zacharie, age 75, were injured when attacked by a German shepherd dog while riding their adult tricycles. The attack took place on a street adjacent to property owned by Marine Outlet, a partnership consisting of two partners, Marine Outlet, Inc. and Marine Outlet Sales, Inc. (hereinafter referred to as Marine Outlet). Miner and Zacharie sued the partnership and both its partners for damages.
Prior to the expiration of the twenty-day period in which Marine Outlet had to file its answer, Marine Outlet’s insurance adjuster, Paul Reeley, contacted Miner and Zach-arie’s attorney’s office. Reeley spoke with the attorney’s secretary about an extension of time in which to file Marine Outlet’s answer. Although the parties dispute the substance of the conversation, the trial court found that, after the conversation, Reeley believed that a default would not be taken if the answer was not timely filed. No answer was filed by the end of the twenty-day period, and one day later the plaintiffs’ attorney obtained a clerk’s default. The trial court denied Marine Outlet’s motion to vacate the default.
To justify setting aside a default, the defaulted party must show both excusable neglect and a meritorious defense. Savela v. Fisher, 464 So. 2d 240 (Fla. 2d DCA 1985); Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984). The trial court’s finding that Reeley believed that no default would be filed if the answer was not timely filed is excusable neglect of Marine Outlet’s duty to timely answer the complaint. American Republic Insurance Co. v. Westchester General Hospital, 414 So. 2d 1163 (Fla. 3d DCA 1982); B.C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981).
The affidavits filed with Marine Outlet’s motion to vacate the default set forth a meritorious defense by raising the question of the identity of the dog who attacked the plaintiffs. The affidavits of the principal shareholders of each corporate partner stated that although a German shepherd dog was kept on the Marine Outlet premises, there were two or three other dogs in the area who fit the description. The affidavits also denied knowledge of Marine Outlet’s dog’s presence in the vicinity when the attack occurréd.
For the reasons set forth above, we hold that the trial judge abused his discretion in refusing to vacate the default. We note that the default was obtained one day after the expiration of the twenty-day period Marine Outlet had to file its answer. In similar circumstances, appellate courts have not hesitated to set aside defaults. See Kuehne & Nagel, Inc. v. Esser International, Inc., 467 So. 2d 457 (Fla. 3d DCA 1985) and cases cited therein; Savela v. Fisher. Accordingly, we reverse the trial court’s order and remand to the trial court with instructions to set aside the clerk’s default.
SCHEB and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Richardson v. Watson, 611 So. 2d 1254 (Fla. 2d DCA 1992)…’S DEFAULT The order denying the appellant’s motion to set aside the clerk’s default is an appealable nonfinal order. Fla.R.App.P. 9.130(a)(3)(C)(iv); Doctor’s Hosp. of Hollywood, Inc. v. Madison, 411 So. 2d 190 (Fla. 1982); Marine Outlet v. Miner, 469 So. 2d 251 (Fla. 2d DCA 1985). The trial court’s order denying the motion for reconsideration of that order, however, is not appeal-able. A motion for rehearing is authorized only after entry of a final order or judgment. Fla.R.App.P. 9.020(g); Wagner; Po-tuce…
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DeRUYTER v. State, 521 So. 2d 135 (Fla. 5th DCA 1988)…Florida law is well settled that to justify setting aside a default the defendant must establish both excusable neglect and that a meritorious defense exists. Tire Kingdom, Inc. v. Bowman, 480 So. 2d 221 (Fla. 5th DCA 1985); Marine Outlet v. Miner, 469 So. 2d 251 (Fla. 2d DCA 1985); Wentnick v. European American Bank, 487 So. 2d 382 (Fla. 4th DCA 1986); Quality Electric Service v. Seymour Electric Supply, 487 So. 2d 80 (Fla. 1st DCA 1986). While there is a policy of liberality towards vacation of defaults, N…
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Cole v. Blackwell, 523 So. 2d 725 (Fla. 3d DCA 1988)…the terms of the oral agreement and denying any liability. Cole’s belief, based on representations made by one of the senior partners of the law firm, that she need not respond to the complaint constituted excusable neglect. Marine Outlet v. Miner, 469 So. 2d 251 (Fla.2nd DCA 1985); see also B.C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345 (Fla.Sd DCA 1981). Moreover, the failure to give Cole notice and to permit her an opportunity to be heard on the issue of damages was a denial of her right to due…
Authorities Cited
- B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)
- Doctor's Hosp. OF Hollywood, Inc. v. Hunter W. Madison, 411 So. 2d 190 (Fla. 1982)
- 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)
- Am. Republic Ins. Co. v. Westchester Gen. Hosp., 414 So. 2d 1163 (Fla. 3d DCA 1982)
- THE Florida BAR v. Ethier, 411 So. 2d 872 (Fla. 1982)
- Savela v. Fisher, 464 So. 2d 240 (Fla. 2d DCA 1985)
- C.A.S. v. State, 467 So. 2d 457 (Fla. 3d DCA 1985)
- Kuehne & Nagel, Inc. v. Esser Int'l, Inc., 467 So. 2d 457 (Fla. 3d DCA 1985)