OKEECHOBEE IMPORTS, INC., D/B/A ACURA OF PALM BEACH, A FLORIDA CORPORATION, APPELLANT,
v.
AMERICAN SAVINGS AND LOAN ASSOCIATION OF FLORIDA, A FLORIDA SAVINGS AND LOAN ASSOCIATION, APPELLEE
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Okeechobee Imports failed to respond to a lawsuit filed by American Savings and Loan Association, resulting in a default judgment. The Third District Court of Appeal reversed the trial court's denial of the motion to set aside the default, holding that the misfiling of the summons and complaint, combined with confusion from related pending litigation, constituted excusable neglect.
The trial court abused its discretion in denying the motion to set aside the default judgment. Misfiling of a summons and complaint resulting in failure to file a responsive pleading constitutes excusable neglect, and such neglect is further excusable when combined with confusion from the pendency of related or similar cases involving the same parties.
[1] A misfiling of a summons and complaint, leading to a failure to file a responsive pleading, may constitute excusable neglect.
[2] Confusion arising from the pendency of multiple cases involving similar parties or subject matter can be considered excusable neglect for a failure to respond.
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Join FLexlaw to unlock all legal intelligence“The misfiling of a summons and complaint, resulting in the failure to file a responsive pleading, has been held to constitute excusable neglect.”
Establishes the legal standard that misfiling constitutes excusable neglect, citing multiple precedents
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Join FLexlaw to unlock all legal intelligenceAmerican Savings served a summons and complaint on Okeechobee Imports in June 1989 claiming breach of a repurchase obligation for an automobile retail…
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NESBITT, Judge.
In June 1989, American Savings and Loan Association of Florida served a summons and complaint upon the registered agent of Okeechobee Imports, Inc., d/b/a Acura of Palm Beach claiming that company had breached its contractual obligation to repurchase an automobile retail installment contract. These papers were forwarded to Acura’s business office and filed in the “Deal” file relative to the vehicle involved. That automobile was also involved in other non-related pending litigation. On October 2, 1989, Acura’s office manager received a letter from American Savings’ attorney advising that a final judgment had been entered in favor of American Savings against Acura.
The office manager immediately telephoned Acura’s attorney. Two days later, through counsel, Acura filed a motion to set aside default and final judgment. Acura asserted that the foregoing facts constituted mistake and/or excusable neglect and that it had a meritorious defense to American Savings’ complaint. Thus, appellant claimed, pursuant to Florida Rules of Civil Procedure 1.500(d) and 1.540(b), Acura was entitled to relief. Following a hearing, the trial judge entered an order denying appellant’s motion to set aside the default. We find that the trial court’s failure to set aside the default judgment was an abuse of discretion.
The misfiling of a summons and complaint, resulting in the failure to file a responsive pleading, has been held to constitute excusable neglect. North Shore Hosp., Inc. v. Barber, 143 So. 2d 849, 852 (Fla.1962); Credit Gen. Ins. Co. v. Thomas, 515 So. 2d 336 (Fla. 3d DCA 1987); Fortune Ins. Co. v. Sanchez, 490 So. 2d 249 (Fla. 3d DCA 1986); Bland v. Viking Fire Protection, Inc., 454 So. 2d 763 (Fla. 2d DCA 1984); County Nat’l Bank v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981); Associated Medical Inst., Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976). Where an employee fails to follow established corporate procedures in processing a complaint, this court has deemed such actions to constitute excusable neglect. See Plotkin v. Deatrick Leasing Co., 267 So. 2d 368 (Fla. 3d DCA 1972). In this case, as indicated by her affidavit, the office manager inadvertently misfiled the summons and complaint in the “Deal” file relative to the subject vehicle, despite the fact that all suit papers are normally forwarded to Acura’s president or Acura’s legal counsel.
Moreover, 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 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 (Fla. 3d DCA 1980).
Accordingly, the order denying defendant’s motion to set aside default and final judgment is reversed and the case is remanded for further proceedings.
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Cited By (14 total)
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Szucs v. Qualico Dev., Inc., 893 So. 2d 708 (Fla. 2d DCA 2005)
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Cinkat Transp., Inc. v. Md. Cas. Co., 596 So. 2d 746 (Fla. 3d DCA 1992)…the summons and complaint, excusable neglect sufficient to set aside a default judgment. Hialeah, Inc. v. Adams, 566 So. 2d 350 (Fla. 3d DCA), review denied, 576 So. 2d 284 (Fla.1990); Okeechobee Imports, Inc. v. American Sav. & Loan Ass’n of Fla., 558 So. 2d 506 (Fla. 3d DCA 1990). Second, Cinkat asserted a meritorious defense to plaintiffs claim in its proposed answer setting out its affirmative defenses, which was attached to its motion to vacate. Atlantic Asphalt & Equip. Co. v. Mairena, 578 So. 2d 292 (…
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Miami-Dade Cnty. v. Coral BAY Section C Homeowners Ass'n, Inc., 979 So. 2d 318 (Fla. 3d DCA 2008)…ment entered against a municipality because a complaint that had been promptly forwarded to an insurer was misplaced during a nationwide change in the insurer’s claim processing procedures); Okeechobee Imports, Inc. v. Am. Sav. & Loan Ass’n of Fla., 558 So. 2d 506, 507 (Fla. 3d DCA [*324] 1990) (concluding that an automobile dealership was entitled to have a default and final judgment set aside where the complaint was forwarded to a business office and placed in a non-litigation related file dealing with the…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- State Bank of Eau Gallie v. Raymond, 103 Fla. 649 (Fla. 1931)
- Cnty. Nat'l Bank OF N. Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981)
- Associated Med. Insts., Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976)
- Plotkin v. Deatrick Leasing Co., 267 So. 2d 368 (Fla. 3d DCA 1972)
- Cunningham v. Clancie White and Essie White, 390 So. 2d 467 (Fla. 3d DCA 1980)
- Fortune Ins. Co. v. Vincente Sanchez, Jr., 490 So. 2d 249 (Fla. 3d DCA 1986)
- Bland v. Viking Fire Prot., 454 So. 2d 763 (Fla. 2d DCA 1984)
- Zwickel v. KLC, Inc., 464 So. 2d 1280 (Fla. 3d DCA 1985)
- Credit Gen. Ins. Co. v. Thomas, 515 So. 2d 336 (Fla. 3d DCA 1987)