ASSOCIATED MEDICAL INSTITUTIONS, INC., D/B/A HIALEAH HOSPITAL, APPELLANT,
v.
JOSEPH IMPERATORI, PERSONAL REPRESENTATIVE OF THE ESTATE OF INFANT IMPERATORI, FOR THE USE AND BENEFIT OF SAID ESTATE, ET AL., APPELLEES
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Hialeah Hospital appeals a trial court's denial of its motion to set aside a default judgment in a wrongful death action. The appellate court reversed, finding that the hospital demonstrated excusable neglect through misfiling and presented meritorious defenses in its answer filed with the rehearing petition, warranting vacation of the default.
The court held that misfiling constitutes excusable neglect and that when a defendant demonstrates excusable neglect and presents meritorious defenses, a court should set aside the default to permit determination on the merits. The trial court properly denied the initial motion for lack of specific meritorious defenses, but erred in denying the rehearing petition after the hospital filed a detailed answer with affirmative defenses.
[1] A court will set aside a default judgment when a defendant demonstrates excusable neglect and a meritorious defense.
[2] A clerical error, such as misfiling a complaint and summons, may constitute excusable neglect.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“When a defendant demonstrates that his neglect was excusable and he has a meritorious defense, a court will set aside the default for failure to file a responsive pleading so as to permit a determination of the controversy on the merits.”
Establishes the controlling legal standard for setting aside defaults—requires both excusable neglect and meritorious defenses.
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Join FLexlaw to unlock all legal intelligenceHialeah Hospital was served with a complaint and summons in a wrongful death action while its administrator was on vacation. The hospital's secretary,…
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PER CURIAM.
Defendant hospital appeals an order denying its motion to set aside default judgment.
In a wrongful death action a default was entered against Hialeah Hospital for failure to answer the complaint. The hospital filed a motion to set aside default stating that the failure to answer was due to excusable neglect and that it had “viable defenses.” Attached to the motion was Robert Trim-ble’s the hospital’s administrator, affidavit stating that while he was on vacation a copy of the complaint and summons was served upon his secretary, Miss Wong, who by mistake misfiled them in the “terminated case” file instead of the “pending case” file. The trial judge denied the motion for failure to show (1) the existence of meritorious defenses, and (2) a legal excuse for not filing a responsive pleading. The hospital then filed a motion for rehearing along with an answer containing affirmative defenses. Upon denial of this petition, the hospital perfected this interlocutory appeal.
When a defendant demonstrates that his neglect was excusable and he has a meritorious defense, a court will set aside the default for failure to file a responsive pleading so as to permit a determination of the controversy on the merits. Clark v. Roberto’s, Inc., 320 So. 2d 870 (Fla. 4th DCA 1975) and cases cited therein.
We find that the misfiling of the complaint and summons constitutes excusable neglect. See North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 853 (Fla.1962).
Initially the motion to vacate default merely alleged that the hospital had “viable defenses” which was insufficient and, thus, the trial judge was correct in denying the motion for defendant’s failure 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 remanded.
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Citator
Cited By (25 total)
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B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)…Garcia Insurance Agency, Inc. v. Diaz, supra; Traveler’s Insurance Co. v. Bryson, 341 So. 2d 1013 (Fla. 4th DCA 1977); 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…
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Garcia Ins. Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977)…tion to Vacate filed on March 8. In Sterling Drug, supra, the supreme court similarly accords considerable weight to defendant’s “diligence in moving to vacate the default.” 342 So. 2d at 505. In Associated Medical Institutions, Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976) the court vacated a default on facts much similar to those in Barber. In Imperatori, the Fourth District Court of Appeal held that the misfiling of the summons and complaint constituted excusable neglect and reversed the lower cou…
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Cnty. Nat'l Bank OF N. Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981)…failure to appear at a hearing because of an error on his calendar constituted excusable neglect. In other cases, clerical or secretarial error has also been held to constitute excusable neglect. Associated Medical Institutions, Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976); North Shore Hospital, Inc. v. Barber, supra; Stevens-Davis Co. v. Stock, 141 Fla. 714, 193 So. 745 (1940); Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla.1977). Of course, each of these cases turn upon its own complete set of…
Previewing 3 of 25 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)
- Windhurst v. State, 320 So. 2d 870 (Fla. 4th DCA 1975)
- Ellis S. Rubin v. Blanche Toni Baker, 276 So. 2d 532 (Fla. 3d DCA 1973)