RENUART-BAILEY-CHEELY LUMBER AND SUPPLY COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
RICHARD ALLEN HALL, APPELLEE
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Florida appellate court reversed the trial court's denial of defendant's motion to set aside default, holding that the defendant established excusable neglect where the complaint was lost during an office move and promptly addressed once discovered.
A default judgment should be vacated when the defendant demonstrates excusable neglect, such as when a complaint is lost during an office relocation and the defendant diligently pursues relief upon discovery.
[1] A default judgment may be vacated upon a showing of excusable neglect, including circumstances where a complaint is lost during an office relocation and the defendant dil…
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Join FLexlaw to unlock all legal intelligenceRenuart-Bailey-Cheely Lumber and Supply Company received a complaint that was transmitted to its insurance department, which was relocating at the tim…
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Defendant, Renuart-Bailey-Cheely Lumber and Supply Company, brings this interlocutory appeal from an order of the lower court denying its motion to set aside default.
A review of the record on appeal reveals that a default was entered against defendant-appellant when no answer or other response was filed following the receipt of plaintiff-appellee’s complaint. After entry of the default, neither a motion for final judgment nor any other pleading, order or notice was filed nor any hearing held on this cause until defendant-appellant moved to set aside the default. In affidavits filed subsequent to the default, defendant-appellant stated that when the complaint was received it was transmitted to the appropriate insurance department office within the Renuart-Bailey-Cheely organization. This office was in the process of moving and the complaint was temporarily lost. When the complaint was eventually found, it was forwarded to the insurance company who refused to defend the suit because the subject default was already entered. Defendant-appellant then turned the matter over to their attorneys who did everything possible to vacate the default.
On these facts we find that the lower court should have vacated the default based upon the defense of excusable neglect. North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849; Imperial Industries, Inc. v. Moore Pipe and Sprinkler Co., Fla.App.1972, 261 So.2d 540; General Finance Corp. v. Northside Bank of Miami, Fla.App.1968, 212 So.2d 917. By this action no prejudice will be worked against any party.
Reversed and remanded.
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Citator
Cited By
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B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)…d Medical Institutions, Inc. v. Imperatori, 338 So. 2d 74 (Fla.3d DCA 1976); Espinosa v. Racki, 324 So. 2d 105 (Fla.3d DCA 1975); Plotkin v. Deatrick Leasing Co., 267 So. 2d 368 (Fla.3d DCA 1972); Renuart-Bailey-Cheely Lumber and Supply Co. v. Hall, 264 So. 2d 84 (Fla.3d DCA 1972). We also agree with the court in Garcia Insurance Agency, Inc. v. Diaz, supra, that the principle of liberality places a heavier burden on the party seeking to reverse an order granting a motion to vacate default, than on a party…
Authorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Collie v. State, 261 So. 2d 540 (Fla. 3d DCA 1972)
- Imperial Indus., Inc. v. Moore Pipe & Sprinkler Co., 261 So. 2d 540 (Fla. 3d DCA 1972)
- Gen. Fin. Corp. OF Fla. v. Northside Bank OF Miami, 212 So. 2d 917 (Fla. 3d DCA 1968)