GLENN D. SCHERER, APPELLANT,
v.
THE CLUB, INC., D/B/A KINGS BAY YACHT AND COUNTRY CLUB, INC., A FLORIDA CORPORATION, APPELLEE
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The plaintiff appeals the trial court's order setting aside a default judgment against the defendant corporation for failure to timely answer. The court reverses, holding that the defendant's motion to set aside the default was not supported by adequate affidavits showing excusable neglect by the corporation's own officers or agents.
The court holds that a corporate defendant seeking to vacate a default must allege and prove excusable neglect through affidavits from its own officers or agents, not merely through affidavits from its insurance company's representatives. Because the defendant failed to provide such adequate proof of excusable neglect by its own officers or agents, the motion to set aside the default should have been denied.
[1] A corporate defendant seeking to set aside a default must allege and prove excusable neglect of an officer or agent.
[2] A motion to set aside a default must be supported by proof demonstrating a meritorious defense.
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Join FLexlaw to unlock all legal intelligence“Before a trial judge may vacate a default, a corporate defendant must allege and prove excusable neglect of an officer or agent.”
Establishes the legal standard that corporate defendants must prove excusable neglect through their own officers or agents, not third parties
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Join FLexlaw to unlock all legal intelligenceOn February 6, 1975, the defendant was properly served with a complaint for damages. After the defendant failed to serve or file an answer within ten …
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PER CURIAM.
By this interlocutory appeal plaintiff seeks reversal of the trial court’s order setting aside the default entered against the defendant for its failure to serve or file an answer or other pleadings to plaintiff’s complaint for damages.
On February 6, 1975, proper service was made on the defendant, The Club, Inc. d/b/a Kings Bay Yacht and Country Club, Inc. Ten days after defendant’s answer was due a default was entered pursuant to plaintiff’s motion.
On March 17, 1975, plaintiff filed a notice for trial and sent a copy to defendant’s resident agent. On May 28, 1975, almost three months after the entry of the default, the defendant by and through its attorneys moved to set aside the default on the grounds of excusable neglect. The motion was supported by affidavits from Doug Hetherington, underwriter for Hull & Co. and Al Ives, Casualty Claims Supervisor for Devonshire Coverage Corporation. The trial court entered its order on June 30, 1975 setting aside the default.
Appellant contends that the trial court erred in the entry of the order because the affidavits in support of defendant’s motion were legally inadequate to support the motion and because, based on the facts of the case, the defendant’s excuse for failure to answer plaintiff’s complaint in a timely fashion was legally insufficient to justify the setting aside of the default.
It is apparent from the record that the defendant, The Club, Inc., filed no affidavit on its own behalf by any officer or agent seeking to justify its failure to respond to plaintiff’s complaint. The only affidavits filed were by agents of the defendant’s insurance company seeking to justify that insurance company’s failure to take action to respond to the complaint.
We find merit in appellant’s contention that the affidavits in support of defendant’s motion were legally inadequate to support the motion to set aside the default. As we said in Winky’s, Inc. v. Francis, Fla.App.1970, 229 So. 2d 903, “Before a trial judge may vacate a default, a corporate defendant must allege and prove excusable neglect of an officer or agent.” Since neither an affidavit or other proof appear in the record to show excusable neglect by an officer or agent of the defendant nor was it made to appear that the defendant had a meritorious defense, the motion should have been denied. Chaney v. Headley, Fla., 90 So. 2d 297.
Therefore, for the reasons stated, the order setting aside the default is reversed and the cause is remanded for further proceedings.
Reversed and remanded.
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Bayview Tower Condo. Ass'n, Inc. v. Schweizer, 475 So. 2d 982 (Fla. 3d DCA 1985)…and its agents. This being so, there was utterly no showing below of excusable neglect by the defendant in failing to respond to the plaintiff’s complaint — which failure of proof was fatal to the subject motion to vacate. Sherer v. The Club, Inc., 328 So. 2d 532 (Fla. 3d DCA), cert. dismissed, 334 So. 2d 604 (Fla.1976). Second, the record shows totally inexcusable delays on the part of the defendant’s insurance company in losing, and failing to discover after fair notice, the insurance adjuster’s file in…
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Anamaria Santiago v. Mauna LOA Invs., LLC, 189 So. 3d 752 (Fla. 2016)…e excusable neglect, particularly since the plaintiff subsequently gave notice, which was not respondedlo, of its intention to seek a default because no answer had been filed.” Abel, Tony & Aldo, 419 So. 2d at 1135-36; see Scherer v. The Club, Inc., 328 So. 2d 532, 533 (Fla. 3d DCA 1976) (“[Njeither an ¡affidavit, [n]or other proof appear in the record to show excusable neglect by an officer or agent of the defendant nor was it. made to appear that the defendant had a meritorious defense.”). Here, under simil…
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Zoto's Int'l, Inc. v. Pinkus, 341 So. 2d 811 (Fla. 3d DCA 1977)…Green v. Hood, 120 So. 2d 223 (Fla.2d DCA 1960); Shurden v. Thomas, 134 So. 2d 876 (Fla.1st DCA 1961) and Farish v. Lum’s, Inc., 267 So. 2d 325 (Fla.1972); Acme Fast Freight, Inc. v. Bell, 318 So. 2d 212 (Fla.3d DCA 1975); Scherer v. The Club, Inc., 328 So. 2d 532 (Fla.3d DCA 1976).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Winky's, Inc. v. Ivy M. Francis, 229 So. 2d 903 (Fla. 3d DCA 1969)
- Chaney v. Headley, 90 So. 2d 297 (Fla. 1956)