GENERAL MOTORS ACCEPTANCE CORP., APPELLANT,
v.
JAMES BRUCE THORNBERRY AND PAMELA THORNBERRY, HIS WIFE, APPELLEES
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GMAC appealed a trial court's denial of its motion to set aside a default judgment entered against it in a negligence suit. The court reversed, holding that GMAC's internal misrouting of service documents constituted excusable neglect warranting relief from default.
The court held that GMAC demonstrated excusable neglect and due diligence, and therefore the default judgment should be set aside. The court also held that GMAC properly raised the statute of limitations defense by motion to dismiss rather than by answer.
[1] A mis-routing of suit papers within a corporate entity, under circumstances demonstrating due diligence to correct the error, can constitute excusable neglect justifying…
[2] A statute of limitations defense appearing on the face of a complaint may be asserted by a motion to dismiss.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Under established precedent, a mis-routing of suit papers under circumstances like these has been held to constitute excusable neglect.”
Establishes the legal standard that internal misrouting of documents can satisfy the excusable neglect requirement for relief from default.
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Join FLexlaw to unlock all legal intelligenceGMAC was served with a complaint for damages arising from an automobile accident. GMAC's legal department mistakenly forwarded the service papers to i…
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PER CURIAM.
General Motors Acceptance Corporation (GMAC) appeals an order denying its motion to set aside a default.* We reverse.
Plaintiffs James Bruce Thornberry and Pamela Thornberry filed suit against GMAC for damages arising out of an automobile accident involving a GMAC-owned vehicle. Plaintiffs served the lawsuit on GMAC’s registered agent, which forwarded the suit papers to GMAC’s legal department. The legal department mistakenly forwarded the suit papers to GMAC’s Miami office, instead of the New Jersey office which serviced this particular account. The Miami GMAC office telephoned the GMAC legal department to advise it of the mistake. Each party to the conversation mistakenly believed that the other party would notify the insurance carrier to provide a defense. Consequently, there was a delay in forwarding the papers to the insurance carrier and counsel for a defense.
On the 21st day after service of the complaint, the clerk entered a default on ex parte motion by plaintiffs’ counsel. On the 30th day following service the mistake had been discovered and the suit papers placed in the hands of defense counsel. On the 33rd day counsel filed a motion to set aside default, supported by affidavits detailing the foregoing. Plainly, GMAC exercised due diligence to move to set aside the default. The trial court ruled, however, that GMAC had not shown excusable neglect. We disagree.
Under established precedent, a mis-routing of suit papers under circumstances 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 raising it by affirmative defense. We disagree. Where, as here, the statute of limitations defense appears on the face of the complaint, it is permissible to assert the statute of limitations defense by motion to dismiss. See Toledo Park Homes v. Grant, 447 So. 2d 343 (Fla. 4th DCA 1984); Estate of James v. Martin Memorial Hospital, 422 So. 2d 1043 (Fla. 4th DCA 1982). See also Fla.R.Civ.P. 1.110(d).
The order under review is reversed and the cause remanded with directions to set aside the default.
*
Such an order is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). See Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So. 2d 190, 191 (Fla. 1982).
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Nationstar Mortg., LLC v. Sunderman, 201 So. 3d 139 (Fla. 3d DCA 2015)…ately. With respect to Nationstar’s first argument, the law is clear that a party can raise a statute of limitations defense in a motion to dismiss if that defense appears on the face of the complaint. See Gen. Motors Acceptance Corp. v. Thomberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993) (“Where, as here, the statute of limitations [*141] defense appears on the face of the complaint, it is permissible to assert the statute of limitations defense by motion to dismiss.”); accord Forbes v. Lehner, 151 So. 3d 31…
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Alexander v. Suncoast Builders, Inc., 837 So. 2d 1056 (Fla. 3d DCA 2002)…, 170 (Fla. 3d DCA 1996), review denied sub nom, Arquitectonica Int’l Corp. v. Brickell Biscayne Corp., 695 So. 2d 698 (Fla.1997); Khalaf v. City of Holly Hill, 652 So. 2d 1246, 1247 (Fla. 5th DCA 1995); General Motors Acceptance Corp. v. Thomberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993). Therefore, in ruling on a motion to dismiss, a trial court may only consider the allegations pled in the complaint. In the instant case, the allegations contained in the amended complaint are as follows: In September 1992,…
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Shurgard Storage Ctrs., Inc. v. Marcelle Parker, 755 So. 2d 695 (Fla. 4th DCA 1999)…fices in Denver and Miami such that a clear case of excusable neglect as a result of a system gone awry has been shown.1 See Nationsbank, N.A. v. Regency Ctrs., Inc., 725 So. 2d 439 (Fla. 4th DCA 1999); General Motors Acceptance Corp. v. Thornberry, 629 So. 2d 292 (Fla. 3d DCA 1993). This court has previously stated that “[w]here inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely appli…
Previewing 3 of 10 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)
- Doctor's Hosp. OF Hollywood, Inc. v. Hunter W. Madison, 411 So. 2d 190 (Fla. 1982)
- Toledo Park Homes & H.D.V. Constr. Corp. v. Grant, 447 So. 2d 343 (Fla. 4th DCA 1984)
- Hialeah, Inc. v. Adams, 566 So. 2d 350 (Fla. 3d DCA 1990)
- The Est. OF James James v. Martin Mem'l Hosp., 422 So. 2d 1043 (Fla. 4th DCA 1982)
- 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)