ELECTRIC ENGINEERING COMPANY, INC., A FLORIDA CORPORATION, APPELLANT,
v.
GENERAL ELECTRIC CANADA, INC., A FOREIGN CORPORATION, APPELLEE
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Electric Engineering Company appeals the trial court's denial of its motion to vacate a clerk's default. The court reverses, finding excusable neglect where the defendant's registered agent misdirected the complaint to an office the defendant had moved from, combined with the defendant's prompt motion to vacate upon learning of the default and a colorable meritorious defense.
The court held that the defendant established excusable neglect through the misdirected transfer of the complaint combined with prompt action to vacate the default upon discovery. The defendant also demonstrated a meritorious defense by filing a motion to dismiss that set forth a factual basis for a statute of frauds defense, which is an arguable defense in this case.
[1] A clerk's default may be vacated upon a showing of excusable neglect, due diligence in moving to set aside the default, and a meritorious defense.
[2] Excusable neglect in failing to respond to a complaint may be established by evidence of a misdirected transfer of the complaint by a registered agent due to a change in…
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Join FLexlaw to unlock all legal intelligence“excusable neglect was shown below based on a misdirected transfer of the complaint by the defendant's registered agent to the defendant which, unbeknownst to the agent, had moved its office, resulting in a loss of the complaint”
Establishes the factual basis for finding excusable neglect in the context of service of process failures
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Join FLexlaw to unlock all legal intelligenceGeneral Electric Canada sued Electric Engineering Company. The complaint was misdirected by defendant's registered agent to the defendant's former off…
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PER CURIAM.
The trial court order denying the defendant Electric Engineering Company, Inc.’s motion to vacate the clerk’s default entered below is reversed and the cause is remanded to the trial court with directions to vacate the default. We reach this result because: (1) excusable neglect was shown below based on a misdirected transfer of the complaint by the defendant’s registered agent to the defendant which, unbeknownst to the agent, had moved its office, resulting in a loss of the complaint, see North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Hialeah, Inc. v. Adams, 566 So. 2d 350 (Fla. 3d DCA), rev. denied, 576 So. 2d 284 (Fla.1990); S.B. Partners v. Holmes, 479 So. 2d 280 (Fla. 2d DCA1985), rev. denied, 488 So. 2d 68 (Fla.1986); Miami Commonwealth Realty Corp. v. Rinehart Volkswagen, Inc., 387 So. 2d 530 (Fla. 3d DCA1980), (2) the defendant acted with due diligence in moving to set aside the clerk’s default upon learning of the entry of same, see Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA1990); Techvend, Inc. v. Phoenix Network, Inc., 564 So. 2d 1145 (Fla. 3d DCA1990), and (3) the defendant made a sufficient showing of a meritorious defense. As to the latter, although it is true that the defendant filed an answer containing a general denial which was insufficient to establish a meritorious defense, Westinghouse Elevator Co. v. DFS Constr. Co., 438 So. 2d 125 (Fla. 2d DCA1983); Mission East Co. v. Wyszatycki, 362 So. 2d 87 (Fla. 3d DCA1978); Bay Convalescent Center, Inc. v. Carroll, 352 So. 2d 900 (Fla. 1st DCA1977), cert. dismissed, 364 So. 2d 881 (Fla.1978), it is also true that the defendant contemporaneously filed a motion to dismiss which set forth, among other things, a factual basis for the defense of the statute of frauds, an arguable defense in this case. See generally Henry P. Trawick, Trawick’s Florida Practice & Procedure § 25-3 (1991). It bears repeating that “ ‘ * * * if there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case_’” North Shore Hosp., Inc. v. Barber, 143 So. 2d 849, 853 (Fla.1962).
Reversed and remanded.
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Roney Plaza Assocs., Ltd. v. Henry, 848 So. 2d 436 (Fla. 3d DCA 2003)…oney’s motion to vacate judgment and default. See North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Royal Caribbean Cruises, Ltd. v. Traveler, 699 So. 2d 847 (Fla. 3d DCA 1997); Electric Engineering Co., Inc. v. General Elec. Can., Inc., 610 So. 2d 51 (Fla. 3d DCA 1992). Reversed.…
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O'Donnell's Corp. v. Himrod Ambroise, 858 So. 2d 1138 (Fla. 5th DCA 2003)…ination letter from the EEOC). 34. The fact that Petitioner mailed the Petition to the Commission’s old address rather than its new address might constitute excusable neglect, cf. Electric Engineering Company, Inc. v. General Electric Canada, Inc., 610 So. 2d 51, 52 (Fla. 3d DCA 1992) (finding excusable neglect sufficient to set aside a default where registered agent forwarded complaint to defendant’s old address), but only if the 35-day period is computed from the date that Petitioner received the Notice.…
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Royal Caribbean Cruises, Ltd. v. Traveler, 699 So. 2d 847 (Fla. 3d DCA 1997)…le neglect. See Venero v. Balbuena, 652 So. 2d 1271, 1272 (Fla. 3d DCA 1995)(holding that insured who forwarded complaint to insurer that either misfiled or lost complaint had shown excusable neglect); Electric Eng’g Co. v. General Elec. Can., Inc., 610 So. 2d 51, 52 (Fla. 3d DCA 1992)(holding that excusable neglect was shown where registered agent unknowingly forwarded complaint to defendant’s former address); Hialeah, Inc. v. Adams, 566 So. 2d 350, 351 (Fla. 3d DCA)(holding that mishandling or misfiling of…
Previewing 3 of 4 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)
- Westinghouse Elevator Co. v. DFS Constr. Co. & Fed. Ins. Co., 438 So. 2d 125 (Fla. 2d DCA 1983)
- Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA 1990)
- Kirkland v. Fla. Dep't of Corr., 2006 WL 3755195 (N.D. Fla. 2024)
- Crews v. The Dania Bank, 352 So. 2d 900 (Fla. 4th DCA 1977)
- Techvend, Inc. v. The Phoenix Network, Inc., 564 So. 2d 1145 (Fla. 3d DCA 1990)
- Hialeah, Inc. v. Adams, 566 So. 2d 350 (Fla. 3d DCA 1990)
- S.B. P'rs v. Holmes, 479 So. 2d 280 (Fla. 2d DCA 1985)
- Mission E. Co. v. Wyszatycki, 362 So. 2d 87 (Fla. 3d DCA 1978)
- Miami Commonwealth Realty Corp. v. Rinehart Volkswagen, Inc., 387 So. 2d 530 (Fla. 3d DCA 1980)