PETER DEBELLO, APPELLANT,
v.
GARRY C. FASKE, APPELLEE
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A defendant's Rule 1.540 motion for relief from a money judgment entered in his absence was granted because his failure to appear resulted from excusable neglect due to miscommunication about the trial date, and the trial court erred in defaulting him despite his answer.
A defendant who has filed an answer is entitled to relief from a judgment entered by default in his absence when the absence results from excusable neglect, and the plaintiff must be put to his proof on the merits.
[1] A defendant who has filed an answer and whose absence from trial results from excusable neglect is entitled to relief from a judgment entered by default, and the plaintif…
Previewing 1 of 1 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“the plaintiff must be put to his proof against a defendant who has answered and thus not defaulted in the case”
Explaining that even if absence were not excusable, a defendant who answered cannot be defaulted and plaintiff must prove the case
Faske was sued and filed an answer indicating his intention to defend, but failed to appear at trial due to miscommunication about the trial date and …
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SCHWARTZ, Chief Judge.
The defendant below appeals from an order denying his Rule 1.540 motion for relief from a money judgment entered after a jury trial at which he did not appear and was not represented. In accordance with the trial judge’s oral ruling at the hearing on the motion, but contrary to the actual order entered after an unexplained period of almost two years had elapsed, we reverse both because (a) Debello’s failure to attend the trial, notwithstanding that he filed an answer and otherwise indicated his intention to defend, was the result of plainly “excusable neglect,” stemming from an understandable failure of communication concerning the date and time of the actual trial, see Baker v. Baker, 538 So. 2d 74 (Fla. 1st DCA 1989); Florida Deft of Envtl. Regulation v. Chemairspray, Inc., 520 So. 2d 96 (Fla. 4th DCA 1988); Supro Corp. v. Bridwell, 361 So. 2d 734 (Fla. 4th DCA 1978), and because (b) the trial judge erroneously defaulted the defendant at the beginning of the trial. Whether or not the defendant’s absence is excusable — as we have held that Debello’s was — the plaintiff must be put to his proof against a defendant who has answered and thus not defaulted in the case. Delancer v. Advanced Mortgage Inv. Co., 546 So. 2d 130 (Fla. 3d DCA 1989); Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So. 2d 424 (Fla. 3d DCA 1979); Stern v. Commercial Constr. Corp., 268 So. 2d 549 (Fla. 3d DCA 1972), cert. denied, 276 So. 2d 166 (Fla.1973); Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967). The order below is therefore reversed for trial on the merits.
Reversed.
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Double R Resorts, Inc. v. Outdoor Resorts OF Am., Inc., 707 So. 2d 1178 (Fla. 3d DCA 1998)…PER CURIAM. Affirmed. See Debello v. Faske, 668 So. 2d 324 (Fla. 3d DCA 1996).…
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Nationstar Mortg., LLC v. Prine, 179 So. 3d 409 (Fla. 3d DCA 2015)…clerk erroneously transmitted the trial order to an incorrect e-mail address for Nationstar’s counsel. Nationstar’s inability to secure a [*411] trial witness and thereby adequately prepare for trial was thus plainly excusable; See DeBello v. Faske, 668 So. 2d 324, 326 (Fla. 3d DCA 1996). Although a presumption of good service arises from a certificate of service on a court order, see World on Wheels of Miami, Inc. v. Int’l Auto Motors, Inc., 569 So. 2d 836, 837 n. 1 (Fla. 3d DCA 1990), the presumption of go…
Authorities Cited
- Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967)
- Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So. 2d 424 (Fla. 3d DCA 1979)
- Dale W. Johnson and Robert v. Clark, 361 So. 2d 734 (Fla. 4th DCA 1978)
- Emil Aescht v. Zach Aubrey Weaver & the Federated Mut. Implement & Hardware Ins. Co., 268 So. 2d 549 (Fla. 2d DCA 1972)
- State of Fla. Dep't of Env't Reg. v. Chemairspray, Inc., 520 So. 2d 96 (Fla. 4th DCA 1988)
- French v. State, 276 So. 2d 166 (Fla. 1973)
- Arthree, Inc. v. Kaskel, 276 So. 2d 166 (Fla. 1973)
- Baker v. Baker, 538 So. 2d 74 (Fla. 1st DCA 1989)
- Lidia R. Delancer v. Advanced Mortg. Inv. Co., Inc., 546 So. 2d 130 (Fla. 3d DCA 1989)
- Indem. Ins. Co. of N. Am. v. Boone, 546 So. 2d 130 (Fla. 3d DCA 1989)