WEEKS CARTAGE, INC., APPELLANT,
v.
CSX TRANSPORTATION, APPELLEE
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The court held that the defendant's misunderstanding of the legal process, based on representations from plaintiff's counsel, constituted excusable neglect, and the proposed answer demonstrated a meritorious defense.
Weeks was served with a complaint and contacted plaintiff's counsel, believing no further action was required based on their conversation. Weeks later…
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[*238] ERVIN, Judge.
Weeks appeals from an order denying its motion to vacate a default judgment, arguing that its motion demonstrated excusable neglect, and its proposed answer, attached to its motion, demonstrated a meritorious defense as well. We agree, reverse and remand.
Weeks’ verified motion, unrefuted by any facts in the record, represents that one day following service of the complaint upon it, defendant, through its president, Marrón Weeks, called plaintiff’s counsel, stating that he was under no contract with appel-lee and considered that no amounts were due. The motion furthermore represented that Weeks understood, as a result of the conversation he had with appellee’s counsel, that counsel would contact him regarding his claims and that no further action would be required by Weeks. Based upon Weeks’ “apparent misunderstanding,” no action was taken until he received notice that a final judgment had been entered in May 1988.
Weeks’ belief, based on representations made by appellee’s attorney, that he need not then take any further action, constituted excusable neglect. See Cole v. Blackwell, Walker, Gray, Powers, Flick & Hoehl, 523 So. 2d 725 (Fla. 3d DCA 1988). Moreover, Weeks’ proposed answer, setting forth three affirmative defenses (lack of privity of contract, estoppel and waiver), indicates a meritorious defense.
REVERSED and REMANDED for further proceedings.
SHIVERS, C.J., and JOANOS, J., concur.
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Gables Club Marina, LLC v. The Gables Condo. & Club Ass'n, Inc., 948 So. 2d 21 (Fla. 3d DCA 2006)…523 So. 2d 725, 725-26 (Fla. 3d DCA 1988); Am. Republic Ins. Co. v. Westchester Gen. Hosp., 414 So. 2d 1163, 1163-64 (Fla. 3d DCA 1982); Rubenstein v. Richard Fidlin Corp., 346 So. 2d 89, 90-91 (Fla. 3d DCA 1977); Weeks Cartage, Inc. v. CSX Transp., 547 So. 2d 237, 238 (Fla. 1st DCA 1989); but cf. George v. Radcliffe, 753 So. 2d 573, 574 (Fla. 4th DCA 1999)(affirm-ing denial of motion to vacate default upon finding that the “stand still” period agreed to by the parties had elapsed and the plaintiff had made n…
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Adolfo Levante v. Corallo, 688 So. 2d 427 (Fla. 3d DCA 1997)…the defendants were misled by the plaintiff into believing responsive pleadings were unnecessary due to ongoing negotiations — the plaintiff may not now obtain a default judgment after such inadequate notice. See Weeks Cartage, Inc. v. CSX Transp., 547 So. 2d 237 (Fla. 1st DCA 1989); American Republic Ins. Co. v. Westchester Gen. Hosp., 414 So. 2d 1163 (Fla. 3d DCA 1982); Rubenstein v. Richard Fidlin Corp., 346 So. 2d 89 (Fla. 3d DCA 1977). Reversed and remanded.…
Authorities Cited
- Cole v. Blackwell, 523 So. 2d 725 (Fla. 3d DCA 1988)