EWING INDUSTRIES, INC., ETC., APPELLANTS,
v.
MIAMI WALL SYSTEMS, INC., ETC., APPELLEES
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The court held that a default should be vacated when entered without notice and the failure to respond was excusable due to confusion from related cases in different circuits.
Appellant appealed the denial of a motion to vacate a default entered in a contract action. The default was entered without notice, and appellant's fa…
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PER CURIAM.
This is an appeal of the denial of a motion to vacate a default entered in a contract action. We reverse.
The trial court erred in denying vacation of the default because not only was the default entered without notice to appellant, but appellant’s failure to respond to the motion for default was excusable since it was caused by confusion as a result of the pendency of two cases involving the same matter and parties in two different circuits.
Moreover, where a party believes his rights are protected in a related action in a different forum and thus fails to answer a complaint in a subsequently filed action, a default entered in that second action will be set aside. Appliance & Refrigeration Distributors, Inc. v. Fedders USA, Inc., 518 So. 2d 1384 (Fla. 3d DCA), review denied, 528 So. 2d 1181 (Fla.1988). Furthermore, we abate the instant action on authority of Mabie v. Garden St. Management Corp., 397 So. 2d 920, 921 (Fla.1981) (where same parties bring similar actions in different circuits, circuit where service of process first perfected retains jurisdiction).
In this case, the same parties brought similar actions in the Fifth and the Eleventh Judicial Circuits; service of process was first perfected in the Fifth Judicial Circuit. The pendency of the prior fifth circuit action is grounds to abate this later filed action. Thomas v. English, 448 So. 2d 623 (Fla 4th DCA 1984); Birnholz v. Steisel, 338 So. 2d 862 (Fla. 3d DCA 1976).
Accordingly, we reverse the default and abate the action. Based on our reversal, the award of attorneys fees is also reversed.
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Inphynet Contracting Servs., Inc. v. R.V. Matthews III, 196 So. 3d 449 (Fla. 4th DCA 2016)…hin this state. See REWJB Gas Invests., 645 So. 2d at 1056 (holding it error to deny stay in later-filed Palm Beach County eviction proceeding where a prior, declaratory action was filed in Dade County); Ewing Indus., Inc. v. Miami Wall Sys’t, Inc., 583 So. 2d 713, 714 (Fla. 3d DCA 1991) (analyzing a case where parties brought similar actions in the Fifth and the Eleventh Judicial Circuits; pen-dency of the prior action was grounds to abate later-filed action); Lightsey v. Williams, 526 So. 2d 764, 765-66 (Fl…
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Corporate Commc'ns Grp., Inc. v. Total Telecomms., Inc., 689 So. 2d 1201 (Fla. 3d DCA 1997)…ment. Where a party laboring under confusion caused by the pendency of an existing action fails to respond to a complaint in a second action, “a default entered in that second action will be set aside.” Ewing Indus., Inc. v. Miami Wall Sys., Inc., 583 So. 2d 713, 713 (Fla. 3d DCA 1991), review denied, 595 So. 2d 557 (Fla.1992); Okeechobee Imports, Inc. v. American Sav. & Loan Ass’n, 558 So. 2d 506 (Fla. 3d DCA 1990). Failure to respond under these circumstances is excusable neglect. Cabral v. Diversified Se…
Authorities Cited
- Lefferts L. Mabie, Jr. v. Garden St. Mgmt. Corp., 397 So. 2d 920 (Fla. 1981)
- Standford Birnholz v. Steisel, 338 So. 2d 862 (Fla. 3d DCA 1976)
- Thomas v. English, 448 So. 2d 623 (Fla. 4th DCA 1984)
- Appliance & Refrigeration Distribs., Inc. v. Fedders USA, Inc., 518 So. 2d 1384 (Fla. 3d DCA 1988)