ELLIS S. RUBIN, APPELLANT,
v.
BLANCHE TONI BAKER, APPELLEE
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A lawyer sued for malpractice obtained a default judgment after failing to answer the complaint. The trial court denied his motion to set aside the default and his motion for reconsideration, even though he promptly tendered an answer containing potential defenses. The appellate court reversed, holding that under Florida law, prompt action to set aside a default combined with a timely answer containing viable defenses requires the trial court to allow the defendant to proceed.
The trial court erred in denying the motion for reconsideration of the motion to set aside the default. Because Rubin acted promptly in moving to set aside the default within days of its entry and had tendered an answer with proposed defenses and an offer to proceed to trial by the time of the reconsideration hearing, the order must be reversed and the cause remanded to accept the tendered answer and allow proceedings to continue.
[1] A default may be set aside when a party acts promptly and tenders a proposed answer containing factual allegations that would constitute a defense if proven.
[2] A trial court errs by denying a motion to set aside a default when the defaulting party acts promptly and subsequently tenders a sufficient answer.
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Join FLexlaw to unlock all legal intelligence“The appellant acted promptly in that he moved to set aside the default within a few days after it was entered and at the time of the denial of his motion for reconsideration, an answer tendering proposed defenses was tendered together with an offer to proceed to trial.”
Establishes the key factors supporting reversal: promptness of action and tender of an answer with viable defenses
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Join FLexlaw to unlock all legal intelligenceEllis Rubin, a lawyer, was sued for malpractice by Blanche Toni Baker. A default judgment was entered against Rubin for his failure to answer the comp…
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Appellant is a lawyer who was sued for malpractice. A default was entered for his failure to answer the complaint. Thereafter, within a few days of the entry of the default, appellant appeared, moved to set aside the default, and asked permission to file an answer. The court denied the motion to set aside default because an answer or defense was not tendered. See State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40 (1931). This deficiency was remedied by the appellant the day after the appellant received a copy of the order in the mail, because the appellant then tendered an answer which contained factual allegations which it appears would constitute a defense if proven. However, the trial court denied appellant’s motion for reconsideration.
It is apparent that appellant has contributed to his own difficulty in that the order denying the motion for reconsideration sets out that appellant failed to appear at the time and place set for hearing and that the motion was thereupon denied. Nevertheless, we hold that the trial court has committed error under the rule established by the Supreme Court of Florida in North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849. The appellant acted promptly in that he moved to set aside the default within a few days after it was entered and at the time of the denial of his motion for *533reconsideration, an answer tendering proposed defenses was tendered together with an offer to proceed to trial. Therefore, the order denying motion for reconsideration of the motion to set aside default is reversed, and this cause is remanded with directions to accept appellant’s tendered answer which was filed on August 31, 1972, and for such other proceedings in this cause as may be appropriate.
Reversed and remanded.
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Associated Med. Insts., Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976)…re to plead or present a meritorious defense. See North Shore Hospital, supra at 852. However, the hospital did file an answer and affirmative defenses with its petition for rehearing and the judge erred in denying the petition. See Rubin v. Baker, 276 So. 2d 532 (Fla. 3d DCA 1973). Accordingly, the order denying the petition for rehearing is reversed and the cause is remanded to the trial court with directions to accept the hospital’s tendered answer and for further appropriate proceedings. Reversed and r…
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Pedro Realty Inc. v. Silva, 399 So. 2d 367 (Fla. 3d DCA 1981)…a.3d DCA 1980); Thomas v. American Vinyl Co., 379 So. 2d 448 (Fla.3d DCA 1980); Associated Medical Institutions, Inc. v. Imperatori, 338 So. 2d 74 (Fla.3d DCA 1976); Acme Fast Freight, Inc., v. Bell, 318 So. 2d 212 (Fla.3d DCA 1975); Rubin v. Baker, 276 So. 2d 532 (Fla.3d DCA 1973). A defendant may not merely state that it has a meritorious defense, but must disclose such a defense in a defensive pleading or affidavit. Perry v. University Cabs, Inc., 344 So. 2d 914 (Fla.3d DCA 1977); Tremblay v. Marck, 378 S…
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Monte Campbell Crane Co., Inc. v. Hancock, 510 So. 2d 1104 (Fla. 4th DCA 1987)…ity to control its own nonfi-nal orders prior to entry of final judgment. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 851 (Fla.1962); Alabama Hotel [*1106] Co. v. J.L. Mott Iron Works, 86 Pla. 608, 98 So. 825 (Fla.1924). In Rubin v. Baker, 276 So. 2d 532 (Fla. 3d DCA 1973), it was held that the trial court should not have denied the appellant’s motion for reconsideration when his motion to set aside a default had been denied for failure to submit simultaneously an answer or defense, but an answer te…
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
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- State Bank of Eau Gallie v. Raymond, 103 Fla. 649 (Fla. 1931)