IN RE ESTATE OF ANTHONY BENJAMIN RASO, DECEASED
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The court held that the trial court abused its discretion in denying the motion to vacate the default judgment because the appellant properly alleged excusable neglect and a meritorious defense.
Appellee filed a petition to determine heirs, listing appellant's illegitimate child as a possible heir. Appellant did not timely respond and a defaul…
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WALDEN, Chief Judge.
The trial court denied appellant, Madeline Dudek’s, motion to vacate a default judgment and she appeals. We reverse.
Appellee, decedent’s wife, filed a Petition for Determination of Heirs, listing as a possible heir the illegitimate child of appellant. The petition was served on appellant but she did not timely respond. Appellee moved for and was granted a default. The court entered an order determining the heirs to be the legitimate children of appellee. Appellant filed a motion to vacate the default judgment. This motion should have been granted. Empire Electric Co. v. R. J. Hunt Construction Co., 264 So. 2d 114 (4th DCA Fla.1972). Appellant properly alleged facts demonstrating excusable neglect. These facts included that she had been extremely ill and had to be hospitalized; that she is on welfare and lives in New Jersey; and that she wrote a letter to the court explaining her difficulties, Jasson D. Radding, Inc. v. Coulter, 138 So. 2d 380 (2d DCA Fla.1962). The appellant also alleged a meritorious defense — decedent was the father of her child, see Clark v. Roberto’s, Inc., 320 So. 2d 870 (4th DCA Fla.1975); Cowen v. Knott, 252 So. 2d 400 (2d DCA Fla.1971).
Therefore, we hold the court abused its discretion in denying appellant’s motion to vacate default judgment as appellant properly alleged excusable neglect and a meritorious defense. The final judgment is vacated and the case is remanded for further proceedings.
REVERSED AND REMANDED.
CROSS, J., arid SCHWARTZ, ALAN R., Associate Judge, concur.
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Khubani v. Mikulic, 620 So. 2d 800 (Fla. 2d DCA 1993)…se. Khubani’s reliance upon his letter and request for continuance supports a finding of excusable neglect. See Kidder v. Hess, 481 So. 2d 984 (Fla. 5th DCA 1986); Terino Bros., Inc. v. Airey, 364 So. 2d 768 (Fla. 2d DCA 1978); In re Estate of Raso, 332 So. 2d 78 (Fla. 4th DCA 1976). In addition, because Khubani’s alleged liability arises from his ownership and operation of the [*802] hotel, his denial of ownership establishes a meritorious defense sufficient to set aside an interlocutory order of default. S…
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In re the Est. of Lawrence Edward Odom v. Est. of Lawrence Edward Odom, 397 So. 2d 420 (Fla. 2d DCA 1981)…if administered, whether the administration of the estate has been closed or the personal representative discharged. A separate [*424] civil action may be brought under this subsection when an estate is not being administered. In re Estate of Raso, 332 So. 2d 78 (Fla.4th DCA 1976), seems to recognize the availability of section 733.105 for the purpose of determining the heirship of an illegitimate child. There the decedent’s wife as personal representative petitioned for determination of heirs, listing an i…
Authorities Cited
- Windhurst v. State, 320 So. 2d 870 (Fla. 4th DCA 1975)
- Empire Elec. Co. v. R. J. Hunt Constr. Co., Inc., 264 So. 2d 114 (Fla. 4th DCA 1972)
- Jasson D. Radding, Inc. v. Coulter, 138 So. 2d 380 (Fla. 2d DCA 1962)
- Cowen v. Knott, 252 So. 2d 400 (Fla. 2d DCA 1971)