HIALEAH, INC., D/B/A HIALEAH PARK, APPELLANT,
v.
RON A. ADAMS, ET AL., APPELLEES
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Hialeah Park appealed a trial court's denial of its motion to vacate a default judgment entered after it failed to respond to a complaint. The appellate court reversed, holding that the defendant established excusable neglect through affidavits showing clerical staff inadvertently mishandled the service documents.
The trial court abused its discretion in denying the motion to vacate. A defendant's neglect in responding to a complaint is excusable when inadvertence results from mishandling or misfiling of suit papers. The defendant's motion to vacate coupled with the registered agent's sworn affidavit sufficiently established that the summons and complaint were inadvertently mishandled by clerical staff, satisfying the excusable neglect standard.
[1] A defendant's neglect in responding to a complaint is excusable when the inadvertence was due to the mishandling or misfiling of suit papers.
[2] A trial court abuses its discretion by denying a motion to vacate a default judgment when the defendant's motion, supported by a sworn affidavit, sufficiently establishes…
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Join FLexlaw to unlock all legal intelligence“A defendant's neglect in responding to a complaint is excusable when the inadvertence was due to the mishandling or misfiling of suit papers.”
Establishes the legal standard for excusable neglect in default judgment cases
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Join FLexlaw to unlock all legal intelligenceOn December 6, 1989, one of Hialeah Park's employees received a complaint and summons. The defendant failed to respond, leading the trial court to ent…
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PER CURIAM.
On December 2, 1989, the plaintiffs filed a complaint against the defendant, Hialeah, Inc., d/b/a Hialeah Park. The return of service reflects that one of the defendant’s employees received the complaint and summons on December 6, 1989. The defendant, however, failed to respond to the complaint. As a result, on December 29, 1989, the trial court entered a default and on January 2, 1990, it entered the final default judgment.
On January 13, 1990, the defendant filed a motion to vacate the default and final default judgment, along with its proposed answer and affirmative defenses. The defendant’s registered agent’s affidavit was attached to the motion to vacate. The affidavit stated that the clerical staff “inadvertently mishandled” the summons and complaint as a result of the ongoing litigation and that the documents were not discovered until after final default judgment had been entered. On February 2, 1990, the trial court denied the motion to vacate solely on the basis that the registered agent’s affidavit failed to establish excusable neglect. Additionally, the court stated that the defendant should have filed an affidavit from the person who was purportedly served with process.
On February 8, 1990, the defendant filed a second motion to vacate and a motion for rehearing. Attached was an affidavit from the employee who received the complaint and summons. The affidavit stated that she had no knowledge of the service of the complaint and it set forth the office procedure for handling suit papers. On March 2, 1990, the trial court denied the motions reasoning that the defendant was not entitled to “two bites of the apple.”
The defendant contends that the trial court abused its discretion in denying the motion to vacate. We agree. As stated earlier, the trial court denied the motion based solely on the fact that it felt that the registered agent’s affidavit failed to establish excusable neglect. A defendant’s neglect in responding to a complaint is excusable when the inadvertence was due to the mishandling or misfiling of suit papers. See Associated Medical Inst., Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976); see generally, North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987). In the instant case, the defendant’s motion to vacate coupled with the registered agent’s sworn affidavit established sufficiently that the summons and complaint were inadvertently mishandled by the clerical staff. Thus, we find that the trial court abused its discretion in denying the motion to vacate.
Because we agree that the trial court abused its discretion in denying the defendant’s motion to vacate, we find no need to address the defendant’s remaining contention. Accordingly, we reverse the trial court’s order denying the defendant’s motion to vacate the default and final default judgment, and remand for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Cinkat Transp., Inc. v. Md. Cas. Co., 596 So. 2d 746 (Fla. 3d DCA 1992)…complaint. Cinkat asserted, through its motion to vacate and attached affidavit, that its employee inadvertently misfiled and misplaced 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 sett…
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Gen. Motors Acceptance Corp. v. Thornberry, 629 So. 2d 292 (Fla. 3d DCA 1993)…mstances like these has been held to constitute excusable neglect. See North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 850 (Fla.1962); Atlantic Asphalt & Equipment Co. v. Mairena, 578 So. 2d 292, 293 (Fla. 3d DCA 1991); Hialeah, Inc. v. Adams, 566 So. 2d 350, 350-51 (Fla. 3d DCA), review denied, 576 So. 2d 284 (Fla.1990). The plaintiffs also claim that GMAC committed a procedural error when it raised the affirmative defense of statute of limitations by motion to dismiss, rather than answering and raisi…
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Markowski v. Attel Bank Int'l, 701 So. 2d 416 (Fla. 3d DCA 1997)…because the sworn affidavit of the mailbox service operator established that the court’s order was never received by the Defendant, see General Motors Acceptance Corp. v. Thornberry, 629 So. 2d 292 (Fla. 3d DCA 1993); Cinkat; Hialeah, Inc. v. Adams, 566 So. 2d 350 (Fla. 3d DCA 1990); Okeechobee Imports, Inc. v. American Sav. & Loan Ass’n of Fla., 558 So. 2d 506 (Fla. 3d DCA 1990); (2) asserting a meritorious defense in his motion to dismiss, and at the December 11, 1996 hearing, where he argued that the promi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Associated Med. Insts., Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976)
- Carter v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987)