CINKAT TRANSPORTATION, INC., APPELLANT,
v.
MARYLAND CASUALTY COMPANY, A/S/O COMBINED CARRIERS CO., APPELLEE
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Cinkat Transportation appealed the denial of its motion to vacate a default final judgment. The Third District Court of Appeal reversed, holding that Cinkat satisfied all three requirements for vacating a default judgment and that the trial court abused its discretion in denying the motion.
Cinkat satisfied all three requirements for vacating a default: (1) excusable neglect in failing to respond due to the employee's inadvertent misfiling; (2) a meritorious defense as shown by the affirmative defenses in the proposed answer; and (3) due diligence, as the attorney promptly contacted opposing counsel and the delay was caused by miscommunications rather than inaction. The trial court abused its discretion in denying the motion to vacate.
[1] A party seeking to vacate a default judgment must demonstrate excusable neglect, a meritorious defense, and due diligence in filing the motion to vacate.
[2] Inadvertent misfiling and misplacement of a summons and complaint by an employee can constitute excusable neglect sufficient to set aside a default judgment.
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Join FLexlaw to unlock all legal intelligence“Cinkat demonstrated excusable neglect in failing to respond to plaintiffs 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.”
Establishes the first requirement for vacating a default—excusable neglect
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Join FLexlaw to unlock all legal intelligenceCinkat's employee inadvertently misfiled and misplaced the summons and complaint, causing Cinkat to fail to respond to the plaintiff's complaint and r…
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BASKIN, Judge.
Cinkat Transportation, Inc. [Cinkat], appeals an order denying its motion to vacate a default final judgment. We reverse.
Cinkat has met the three requirements for vacating a default.
First, Cinkat demonstrated excusable neglect in failing to respond to plaintiffs 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 setting out its affirmative defenses, which was attached to its motion to vacate. Atlantic Asphalt & Equip. Co. v. Mairena, 578 So. 2d 292 (Fla. 3d DCA 1991); Fortune Ins. Co. v. Sanchez, 490 So. 2d 249 (Fla. 3d DCA 1986).
Finally, Cinkat acted with due diligence in filing its motion to vacate. Although Cinkat did not file a motion to vacate for over two months after entry of the default final judgment, Cinkaf s attorney promptly contacted plaintiffs counsel upon learning of the entry of default, placing plaintiff on notice that Cinkat would contest the default. Atlantic Asphalt & Equip. Co., 578 So. 2d at 293. The delay in filing the motion to vacate was caused by an unfortunate series of miscommunica-tions between Cinkat and its counsel. Atlantic Asphalt & Equip. Co. In considering a motion to set aside a default, courts must evaluate both the extent of the delay as well as the reasons for the delay. Apolaro v. Falcon, 566 So. 2d 815, 817 (Fla. 3d DCA 1990).
Cinkaf s delay, under the circumstances of this case, was not unreasonable; the default should have been vacated.
Defaults should be set aside under appropriate circumstances; a strong preference exists in the law for cases to be determined on their merits. North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Marshall Davis, Inc. v. Incapco, Inc., 558 So. 2d 206, 207 (Fla. 2d DCA 1990). Because Cinkat met the requirements for vacating a default, and demonstrated that the trial court abused its discretion in refusing to vacate the default final judgment, we reverse the order and remand for further proceedings.
Reversed and remanded.
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Sec. Bank, N.A. v. Bellsouth Advertising & Publ'g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)…ed. The Bank submitted an unsworn answer along with the motion. The answer asserts that the Bank held only $374.21 belonging to .Garfield. The answer sufficiently states a meritorious defense. See Cinkat Transportation Inc. v. Maryland Casualty Co., 596 So. 2d 746, 747 (Fla. 3d DCA 1992); Fortune Insurance Co. v. Sanchez, 490 So. 2d 249 (Fla. 3d DCA 1986). . In Metcalf v. Langston, the court noted that sworn “proof may be rendered unnecessary by stipulation of the parties, or by the party against whom relief…1 / 2
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Coquina Beach Club Condo. Ass'n, Inc. v. Wagner, 813 So. 2d 1061 (Fla. 2d DCA 2002)…of human error, is entitled to be heard on the merits.” Lindell Motors, 727 So. 2d at 1113. In considering a motion to set aside a default, courts must evaluate the extent of and the reasons for the delay. Cinkat Transp., Inc. v. Maryland Cas. Co., 596 So. 2d 746, 747 (Fla. 3d DCA 1992). If the delay is not unreasonable under the circumstances, then the default should be vacated. Id. The record reflects that the Association acted diligently once it was served with the lawsuit and again when it learned of th…
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Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300 (Fla. 2d DCA 2004)…the default, the due diligence requirement may be deemed satisfied even though the period of delay involved in filing the motion to vacate the default might under other circumstances be held to be too long. See Cinkat Transp., Inc. v. Md. Cas. Co., 596 So. 2d 746 (Fla. 3d DCA 1992) (finding due diligence when the defendant “promptly” contacted plaintiffs counsel upon learning of the entry of default, even though the motion to vacate was not filed until over two months thereafter); Atl. Asphalt, 578 So. 2d at…1 / 2
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA 1990)
- Marshall Davis, Inc. v. Incapco, Inc., 558 So. 2d 206 (Fla. 2d DCA 1990)
- Okeechobee Imports, Inc. v. Am. Sav. & Loan Ass'n OF Fla., 558 So. 2d 506 (Fla. 3d DCA 1990)
- Hialeah, Inc. v. Adams, 566 So. 2d 350 (Fla. 3d DCA 1990)
- Fortune Ins. Co. v. Vincente Sanchez, Jr., 490 So. 2d 249 (Fla. 3d DCA 1986)
- Vidal v. State, 578 So. 2d 292 (Fla. 3d DCA 1991)
- Atl. Asphalt & Equip. Co., Inc. v. Feliciano Moreno Mairena, 578 So. 2d 292 (Fla. 3d DCA 1991)