ALEX LANZA, APPELLANT,
v.
ALLIED TRUCKING OF FLORIDA, INC., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Lanza appeals an order setting aside a default judgment and granting summary judgment in favor of Allied Trucking. The court affirmed the setting aside of the default but reversed the summary judgment, finding genuine issues of material fact existed regarding whether Allied negligently installed a canvas cover that caused Lanza's injury.
The court affirmed the trial court's decision to set aside the default judgment, finding excusable neglect based on office personnel vacations and the timely filing of the motion. The court reversed the summary judgment, holding that genuine issues of material fact remained regarding Allied's responsibility for preparing the trailer and installing the cover, as evidenced by conflicting affidavits between the parties.
[1] A party seeking to set aside a default must demonstrate excusable neglect, a meritorious defense, and due diligence in filing the motion.
[2] An attorney's failure to timely respond to a complaint due to personnel vacations and breakdown in established office procedures can constitute excusable neglect.
Previewing 2 of 4 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“A party moving to set aside a default must show excusable neglect, a meritorious defense, and due diligence in moving to set aside the default.”
Establishes the three-part test required to set aside a default judgment
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLanza brought a negligence action against Allied Trucking, alleging Allied failed to properly install a canvas cover over a trailer containing constru…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Motion To Set Aside Default cases and more on FLexlaw
SUAREZ, J.
Alex Lanza appeals an order vacating a default and the entry of a final summary judgment in favor of the appellee, Allied Trucking of Florida, Inc. (“Allied”). We affirm the setting aside of the default and reverse the final summary judgment.
Lanza brought a negligence action against Allied. He alleges Allied failed to properly install a canvas cover over a trailer containing construction debris which Lanza transported to the dump. He claims the canvas became stuck while he was attempting to remove it — causing him to fall from the trailer and to sustain injuries. Lanza obtained a default against Allied on January 3, 2003. On January 31, 2003, Allied moved to set aside the default. On April 8, 2004, after a stay of the proceedings, the trial court granted Allied’s Motion to Set Aside Default.
We affirm the granting of Allied’s Motion to Set Aside Default. A party moving to set aside a default must show excusable neglect, a meritorious defense, and due diligence in moving to set aside the default. See Venero v. Balbuena, 652 So. 2d 1271 (Fla. 3d DCA 1995).1 Attorneys for Allied filed two affidavits to support the claims of excusable neglect and due diligence. The affidavits established that the complaint was faxed to the defense attorneys’ office but due to vacations of certain office personnel, it was not timely responded to. Failure to set aside a default is an abuse of discretion where excusable neglect has been shown. See, e.g., Okeechobee Imps. Inc. v. Am. Sav. & Loan Ass’n, 558 So. 2d 506 (Fla. 3d DCA 1990) (employee’s failure to follow established corporate procedure in processing complaint constitutes excusable neglect); Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987) (tardiness in answering occasioned by breakdown in defendant’s established office practice constitutes excusable neglect); Kuehne & Nagel, Inc. v. Esser Int’l, Inc., 467 So. 2d 457 (Fla. 3d DCA 1985) (employee’s mistake in filing away summons and complaint constitutes excusable neglect). As the affidavits establish excusable neglect recognized by the courts and the motion to set aside was filed within a reasonable time after learning of the default, the trial court was correct in granting the motion.
On August 6, 2004, Allied moved for summary judgment. In support of the motion, it attached an affidavit of its representative who denied knowledge of any acts on the part of Allied associated with the loading of construction debris into the trailer. Lanza filed an affidavit in opposition to the motion for summary judgment alleging that Allied was responsible for preparing the trailer for shipment and placing a cover over the cargo in the trailer. On December 1, 2004, the trial judge granted Allied’s motion for summary judgment and entered final summary judgment in Allied’s favor. We reverse the final summary judgment entered in favor of Allied on grounds that genuine issues of material fact remain to be resolved by a jury. See Anello v. Murphy Motor Freight Lines, Inc., 525 F. 2d 276 (2d Cir.1975); Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F. 2d 1178 (5th Cir.1975); Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Lumbermens Mut. Cas. Co. v. Alvarez, 443 So. 2d 279 (Fla. 3d DCA 1983).
Affirmed in part, reversed in part, and remanded for further proceedings.
. The issue of a meritorious defense was not raised on appeal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Lazcar Int'l, Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007)…t be sworn. Church of Christ Written in Heaven v. Church of Christ Written in Heaven, 947 So. 2d 557, 559 (Fla. 3d DCA 2006)(pointing out that a motion to vacate default must be supported by sworn statements or affidavits); Lanza v. Allied Trucking, 930 So. 2d 633, 634 (Fla. 3d DCA 2006)(affirming an order granting a defendant’s motion to vacate default where defendant “filed two affidavits to support the claims of excusable neglect and due diligence”); Roberts v. Safeway Ins. Co., 610 So. 2d 700, 701 (Fla. 3…
-
Universal Prop. & Cas. Ins. Co. v. Guillaume Dimanche (Fla. 3d DCA 2022)…1.540(b)(1). Furthermore, it is well-settled in Florida that “[a] party moving to set aside a default must show excusable neglect, a meritorious defense, and due diligence in moving to set aside the default.” Lanza v. Allied Trucking of Fla., Inc., 930 So. 2d 633, 634 (Fla. 3d DCA 2006). This Court has found excusable neglect “where 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.” Noel v. James B…
-
Ansaroff v. Laureles (Fla. 3d DCA 2026)…y of the defendants' allegations."); accord Noel v. James B. Nutter & Co., 232 So. 3d 1112, 1116 (Fla. 3d DCA 2017) (emphasis added) ("Excusable neglect must be proven by sworn statements or affidavits."); Lanza v. Allied Trucking of Florida., Inc., 930 So. 2d 633, 634 (Fla. 3d DCA 2006) (affirming order granting a motion to vacate default where defendant "filed two affidavits to support the claims of excusable neglect and due diligence”). Accordingly, the trial court's granting of Laureles' motion to vacate…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir. 1975)
- Carter v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987)
- Okeechobee Imports, Inc. v. Am. Sav. & Loan Ass'n OF Fla., 558 So. 2d 506 (Fla. 3d DCA 1990)
- Lumbermens Mut. Cas. Co. v. Optimio Alvarez, 443 So. 2d 279 (Fla. 3d DCA 1983)
- Venero v. Balbuena, 652 So. 2d 1271 (Fla. 3d DCA 1995)
- Baron Dorsey v. State, 652 So. 2d 1271 (Fla. 3d DCA 1995)
- C.A.S. v. State, 467 So. 2d 457 (Fla. 3d DCA 1985)
- Kuehne & Nagel, Inc. v. Esser Int'l, Inc., 467 So. 2d 457 (Fla. 3d DCA 1985)
- Anello v. Murphy Motor Freight Lines, Inc., 525 F.2d 276 (2d Cir. 1975)