PAULA PLOTKIN, APPELLANT,
v.
DEATRICK LEASING CO., AND JOHN E. COBY, APPELLEES
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In this interlocutory appeal, the court addressed whether the trial judge abused its discretion in setting aside a default judgment against a corporate defendant in an automobile negligence suit. The court held that corporate inefficiency in failing to properly forward service of process to the appropriate department constitutes excusable neglect under Florida law, affirming the decision to set aside the default.
The trial court did not abuse its discretion in setting aside the default. Although the defendant's assertion of corporate inefficiency amounts to no more than a claim of excusable neglect, it cannot be logically distinguished from the corporate neglect held to be excusable neglect in North Shore Hospital, Inc. v. Barber, and therefore satisfies the requirements for setting aside a default.
[1] Courts generally favor setting aside defaults to allow for a trial on the merits, exercising liberality in such decisions.
[2] A trial court's discretion in setting aside a default is significant but not unlimited.
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Join FLexlaw to unlock all legal intelligence“the policy of the courts in setting aside defaults in order to permit a trial on the merits is one of great liberality, and that the discretion of the trial judge is a heavy factor”
Establishes the fundamental principle that Florida courts favor setting aside defaults to allow cases to be decided on their merits.
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Join FLexlaw to unlock all legal intelligencePlaintiff Paula Plotkin filed a complaint against Deatrick Leasing Company on March 19, 1971. Service was effected on Carl Hargis, described as Vice P…
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The question presented on this interlocutory appeal is whether the court grossly abused its discretion in setting aside a default entered against the appellee. See North Shore Hospital, Inc. v. Barber, Fla. 1962, 143 So.2d 849. The appellant recognizes in her argument that the policy of the courts in setting aside defaults in order to permit a trial on the merits is one of great liberality, and that the discretion of the trial judge is a heavy factor. See Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., Fla.App.1972, 261 So.2d 540. Nevertheless, appellant contends that there are some limitations upon the discretion of the trial judge in setting aside defaults. See Lawn v. Wasserman, Fla.App.1969, 226 So.2d 261; Winter Park Arms, Inc. v. Akerman, Fla.App.1967, 199 So.2d 107. It is urged that the court committed a gross abuse of discretion when it granted the motion to set aside default because the motion alleged no reasonable basis upon which the court could have determined that the appellee was guilty of mere excusable neglect.
Appellant’s complaint in an automobile negligence suit was filed against Deatrick Leasing Company on March 19, 1971. The summons was returned showing service upon the defendant by serving Mr. Carl Hargis, “Vice President] in the absence of President] and all other heads”. A default was entered against Deatrick Leasing Company on June 23, 1971. The motion to set aside default was filed February 29, 1972. The motion to set aside default alleges first that the correct name of defendant is Deatrick Leasing Corporation. The only other ground alleged is that the summons and complaint were never brought to the attention of defendant. Attached to the motion is an affidavit which sets forth (a) that the defendant is a national corporation and that it has an established procedure for the processing of all summonses and complaints which are served; and (b) that the established procedure was not followed in this case because the first knowledge the defendant had of the suit was a notice of default sent to it by certified mail. By way of embellishment, the affidavit recited that although Mr. Hargis was an experienced and knowledgeable manager on April 7, 1971 when service of process was effected, yet somehow the summons and complaint were not forwarded to the corporation’s insurance department, and now the appellee is unable to determine what actually happened because Mr. Hargis resigned on October 29, 1971 and his present whereabouts are unknown.1 It is our opin*370ion that although this definition of excusable neglect amounts to no more than an assertion of corporate inefficiency, nevertheless it cannot be logically distinguished from the corporate neglect held to be excusable neglect in North Shore Hospital, Inc. v. Barber, supra.
Accordingly, the order setting aside default is affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)…Flaxman v. Metropolitan Life Insurance Co., 340 So. 2d 515 (Fla.3d DCA 1976); Associated 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 p…
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Garcia Ins. Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977)…was followed — but where the district court of appeal in question affirmed the lower court’s vacating of a default judgment — were: Flaxman v. Metropolitan Life Insurance Co., 340 So. 2d 515 (Fla. 3d DCA 1976); and, Plotkin v. Deatrick Leasing Co., 267 So. 2d 368 (Fla. 3d DCA 1972). An analysis of the various decisions strongly suggests that a greater showing is required to reverse the trial court’s granting of a motion to vacate default than in [*1139] reversing the denial of such a motion. The eases also…
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Marshall Davis, Inc. v. Incapco, Inc., 558 So. 2d 206 (Fla. 2d DCA 1990)…e policy for handling lawsuits which was not followed in this case. Courts of Florida have held that this constitutes excusable neglect. Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987); Plotkin v. Deatrick Leasing Co., 267 So. 2d 368 (Fla. 3d DCA 1972). Finally, Marshall Davis presented a meritorious defense. We conclude that the preceding facts established that the trial court abused its discretion when it refused to set aside the default. There is a strong preference in the l…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Winter Park Arms, Inc. v. Akerman, 199 So. 2d 107 (Fla. 4th DCA 1967)
- Lawn v. Wasserman, 226 So. 2d 261 (Fla. 3d DCA 1969)
- 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)