BAYVIEW TOWER CONDOMINIUM ASSOCIATION, INC., APPELLANT,
v.
DAVID SCHWEIZER, APPELLEE
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The court held that the trial court did not abuse its discretion in denying the motion to vacate a clerk's default.
The defendant's insurance company failed to timely respond to a complaint, leading to a clerk's default. The defendant moved to vacate the default, bu…
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PER CURIAM.
The order denying the motion to vacate a clerk’s default against the defendant below, Bayview Tower Condominium Association, Inc., is affirmed for three reasons. These reasons may be briefly stated as follows.
First, the affidavits in support of the motion to vacate filed below are legally insufficient because they make no reference to the aforesaid defendant in this case; instead, they refer entirely to the defendant’s insurance company and its agents. This being so, there was utterly no showing below of excusable neglect by the defendant in failing to respond to the plaintiff’s complaint — which failure of proof was fatal to the subject motion to vacate. Sherer v. The Club, Inc., 328 So. 2d 532 (Fla. 3d DCA), cert. dismissed, 334 So. 2d 604 (Fla.1976).
Second, the record shows totally inexcusable delays on the part of the defendant’s insurance company in losing, and failing to discover after fair notice, the insurance adjuster’s file in this case. Indeed, the affidavits show that the said company took five months to discover the file after being informed of the necessity to have the defendant file an answer herein. This inexcusable neglect was fatal to the subject motion to vacate filed below. See Schwab & Co. v. Breezy Bay, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978).
Third, the defendant herein waited a month after its insurance company was informed of the default herein before moving below to vacate the said default. This delay showed a lack of due diligence in seeking relief after learning of the default and was fatal to the subject motion to vacate filed below. See B.C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345, 1347 (Fla. 3d DCA 1981).
For these reasons, we conclude that the trial court committed no gross abuse of discretion in denying the motion to vacate the clerk’s default herein. The order under review is therefore
Affirmed.
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Cited By (19 total)
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Morton L. Ginsberg & MLG Props., Inc. v. Lennar Fla. Holdings, 645 So. 2d 490 (Fla. 3d DCA 1994)…); World’s Finest Inc. v. Carpenter, 564 So. 2d 626 (Fla. 4th DCA 1990); Techvend Inc. v. Phoenix Network Inc., 564 So. 2d 1145 (Fla. 3d DCA 1990); Fischer v. Barnett Banks, 511 So. 2d 1087 (Fla. 3d DCA 1987); Bayview Tower Condominium v. Schweizer, 475 So. 2d 982 (Fla. 3d DCA 1985); Lacore v. Giralda Bake Shop, 407 So. 2d 275 (Fla. 3d DCA 1981); B.C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981). A default judgment will be set aside where the complaint upon which the default was grant…
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Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA 1990)…ding which delayed the actual filing of the motion which plaintiffs knew would be forthcoming. Under the principles outlined above, the default should have been set aside. Plaintiffs rely on Bayview Tower Condominium Association, Inc. v. Schweizer, 475 So. 2d 982 (Fla. 3d DCA 1985), but that case is plainly inapposite. Each motion to set aside a default must be evaluated under the totality of the circumstances presented. See Edwards v. City of Fort Walton Beach, 271 So. 2d 136, 137 (Fla.1972). The court must…
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Lazcar Int'l, Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007)…pt to vacate the default”); Fischer v. Barnett Bank of S. Fla., N.A., 511 So. 2d 1087, 1088 (Fla. 3d DCA 1987)(finding a “five week delay by the defendants [in filing motion to vacate] entirely inexcusable”); Bayview Tower Condo. Ass’n v. Schweizer, 475 So. 2d 982, 983 (Fla. 3d DCA 1985)(finding a delay of one month “showed a lack of due diligence in seeking relief after learning of the default and was fatal to the subject motion to vacate filed below”); see also Allstate Floridian Ins. Co. v. Ronco Invention…
Previewing 3 of 19 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)
- Schwab & Co., Inc. v. Breezy BAY, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978)
- Scherer v. The Club, Inc., 328 So. 2d 532 (Fla. 3d DCA 1976)