GEORGE S. VENERO, APPELLANT,
v.
JUAN BALBUENA, APPELLEE
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Venero appeals the trial court's denial of his motion to set aside a default judgment entered in a subrogation action. The Third District Court of Appeal reversed, holding that Venero satisfied the three requirements for relief from default: meritorious defense, excusable neglect, and due diligence.
Venero satisfied all three requirements for relief from default. The court found a meritorious defense existed (admitted by Balbuena), excusable neglect in relying on the insurer's assurances, and due diligence in promptly seeking relief upon learning of the default and filing the motion within a reasonable time.
[1] Florida policy favors the resolution of cases on their merits, and reasonable doubt should be resolved in favor of setting aside default judgments.
[2] To vacate a default judgment, a party must demonstrate a meritorious defense, excusable neglect, and due diligence from the time of learning of the default.
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Join FLexlaw to unlock all legal intelligence“Florida policy dictates a preference that cases be decided on their merits.”
Establishes the foundational policy favoring resolution on merits over default judgments
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Join FLexlaw to unlock all legal intelligenceBalbuena was sued in a subrogation action following an automobile accident and filed a third-party complaint against Venero. Venero received the compl…
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PER CURIAM.
Appellant, Geoi’ge S. Venero (Venero), appeals an order denying a motion to set aside a default judgment in favor of appellee, Juan Balbuena (Balbuena). We reverse.
Balbuena was involved in an automobile accident, and was sued in a subrogation action by the insurer of the other car. He then filed a third party complaint against appellant Venero, claiming that Venero’s car collided with his car, thus causing damages.
Upon receiving the complaint, Venero immediately contacted his insurer, and delivered the complaint and summons to the insurer’s office. Venero was advised by the insurer that the matter would be .handled. However, an answer was not filed, and a default was entered against Venero on September 29, 1993.
Upon learning of the default six months later, the insurer promptly secured counsel and filed an answer and a motion to set aside the default on May 2, 1994. At the hearing on the motion, an affidavit was presented from the insurer stating that the file had been transferred between offices, and had either been misfiled or lost. Balbuena admitted that the answer contained meritorious defenses. The trial court denied the motion to set aside the default.
Florida policy dictates a preference that eases be decided on their merits. Cinkat Transportation, Inc. v. Maryland Casualty Company, 596 So. 2d 746 (Fla. 3d DCA 1992). In the court’s utilization of its discretion, all reasonable doubt is to be resolved in favor of granting relief from default judgments so that matters may be tried on the merits. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962).
To vacate a default judgment, a meritorious defense, excusable neglect, and due diligence from the time of learning of default must be shown. Brant v. Dolman, 421 So. 2d 689 (Fla. 4th DCA 1982). We find that Venero has met these three requirements.
Balbuena admitted that Venero had a meritorious defense, and Venero showed excusable neglect in failing to answer the complaint because he relied upon the insurer’s assurances that the matter would be handled. See Yelvington Transport, Inc. v. Hersman, 513 So. 2d 1361 (Fla. 3d DCA 1987). Finally, looking at the totality of the circumstances, the record reveals that Venero did exercise due diligence in seeking relief upon learning of the default. See Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA 1990); Cinkat Transportation, 596 So. 2d at 747. See Edwards v. City of Fort Walton Beach, 271 So. 2d 136 (Fla.1972). The insurer promptly secured counsel for Venero and filed the motion to set aside within a reasonable time after learning of the default. Accordingly, we reverse the trial court’s denial of the motion to set aside the default.
Reversed.
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Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300 (Fla. 2d DCA 2004)…sable neglect. See Edwards v. City of Fort Walton Beach, 271 So. 2d 136 (Fla.1972); Finkel Outdoor Prods., Inc. v. Lasky, 529 So. 2d 317 (Fla. 2d DCA 1988); Shaker Lakes Apts. Co. v. Dolinger, 714 So. 2d 1040 (Fla. 1st DCA 1998); Venero v. Balbuena, 652 So. 2d 1271 (Fla. 3d DCA 1995). Thus the critical leg of the legal tripod in this case is the due diligence requirement. In Techvend, Inc. v. Phoenix Network, Inc., 564 So. 2d 1145 (Fla. 3d DCA 1990), the Third District proposed twenty days “as a rule of thumb…
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Joe-Lin, Inc. v. LRG Rest. Grp., Inc., 696 So. 2d 539 (Fla. 5th DCA 1997)…ant could establish excusable neglect and a meritorious defense. The trial court held a hearing on January 6, 1997 and set aside the default. Florida courts have a strong public policy preference to decide cases on their merits. Venero v. Balbuena, 652 So. 2d 1271 (Fla. 3d DCA 1995). However, it is an abuse of discretion for the trial court to set aside a default judgment where the defendant has not demonstrated excusable neglect and a meritorious defense. Armando v. Plazza, 658 So. 2d 1169 (Fla. 2d DCA 1995)…
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Allied Roofing Indus., Inc. v. Denilo Venegas, 862 So. 2d 6 (Fla. 3d DCA 2003)…n “as soon as the suit was filed”). Whenever possible, cases should be determined on their merits, not on irrelevant technicalities. See, e.g., Puga v. Suave Shoe Corp., 417 So. 2d 678, 679 (Fla. 3d DCA 1981) (en banc); see also Venero v. Balbuena, 652 So. 2d 1271, 1272 (Fla. 3d DCA 1995) (“Florida policy dictates a preference that cases be decided on their merits”). - Here, Allied’s representations that it was entitled to maintain this foreclosure action because - it was in the process of winding up — as opp…
Previewing 3 of 17 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)
- Kit C. Edwards v. City OF Fort Walton Beach, 271 So. 2d 136 (Fla. 1972)
- Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA 1990)
- Wes Brandt v. Dolman, 421 So. 2d 689 (Fla. 4th DCA 1982)
- Cash v. State, 596 So. 2d 746 (Fla. 1st DCA 1992)
- Cinkat Transp., Inc. v. Md. Cas. Co., 596 So. 2d 746 (Fla. 3d DCA 1992)
- Yelvington Transp., Inc. v. Hersman, 513 So. 2d 1361 (Fla. 3d DCA 1987)