TRAVELERS INSURANCE COMPANY, APPELLANT,
v.
DAISEY Q. BRYSON AND SALVATORE DELUCA, APPELLEES; DAISEY Q. BRYSON, PETITIONER, V. TRAVELERS INSURANCE COMPANY, RESPONDENT
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Travelers Insurance Company appeals the denial of its motion to vacate a default judgment entered when its counsel failed to appear at a hearing, despite filing an answer on the same day. The court reversed, holding that counsel's failure to calendar the hearing date constituted excusable neglect and that the default should be vacated to allow the case to proceed on the merits.
The trial court abused its discretion in denying the motion to vacate the default. Because Travelers filed its answer on the date of the default hearing and counsel's absence resulted from inadvertent or excusable neglect, the default should be vacated to allow the case to proceed on the merits.
[1] A trial court abuses its discretion by denying a motion to vacate a default when the defendant's failure to appear at the default hearing was due to excusable neglect or…
[2] Florida courts have a policy of liberally setting aside defaults to allow for a determination of the controversy on the merits when a defendant demonstrates excusable neg…
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“It has long been the policy of the courts in this state to liberally set aside defaults for failure of a defendant to plead so as to allow a determination of the controversy on the merits when the defendant demonstrates that his neglect was excusable and that he has a meritorious defense.”
Establishes the liberal standard for vacating defaults in Florida when excusable neglect is shown
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Join FLexlaw to unlock all legal intelligenceOn January 7, 1976, Bryson filed suit against Travelers and DeLuca for personal injuries from an automobile accident. The parties stipulated to a ten-…
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DOWNEY, Judge.
We have for review an interlocutory appeal (Case No. 76-788) from an order denying a motion to vacate a default consolidated with a petition for writ of certiorari (Case No. 76-1362) to review an order denying a motion to strike certain requests for discovery.
On January 7, 1976, Bryson filed suit against Travelers Insurance Company and Salvatore DeLuca for personal injuries arising out of an automobile accident. The parties stipulated to a ten day extension for the filing of a responsive pleading so that Travelers could further investigate the claim. On February 20, 1976, counsel for Travelers filed a motion for a 45 day extension of time to respond to Bryson’s complaint. On February 25, 1976, Bryson filed a motion for default and noticed same for hearing on March 5, 1976. On March 5, 1976, Travelers filed an answer but did not attend the hearing on Bryson’s motion for default because the date had not been properly noted on the calendar of Travelers’ counsel. The court entered a default on March 5th. On March 8th Travelers filed a motion to vacate the default which was denied on March 29th. The interlocutory appeal involves the order denying the motion to vacate.
Had counsel for Travelers properly calendared the hearing date on Bryson’s motion to enter a default, he would have been in a position to advise the court at the hearing that Travelers’ answer had been filed or was being filed, since the answer was filed on the same day the hearing was held. So we are really concerned with whether counsel’s failure to appear at the hearing was a mistake, excusable neglect or inadvertence.
Under the circumstances of this case, we feel the trial judge abused his discretion in not vacating the default. The answer was filed on the date the default hearing was held. Counsel’s absence from the hearing was a mistake, or inadvertent or excusable neglect. English v. Hecht, 189 So. 2d 366 (Fla. 3d DCA 1966).
The purpose of Rule 1.500, Fla.R.Civ.P., is to speed the cause along and prevent dilatory tactics. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). As we said in Clark v. Roberto’s, Inc., 320 So. 2d 870 (Fla. 4th DCA 1975):
“It has long been the policy of the courts in this state to liberally set aside defaults for failure of a defendant to plead so as to allow a determination of the controversy on the merits when the defendant demonstrates that his neglect was excusable and that he has a meritorious defense.”
The period of time which elapsed from filing of suit to default was not an extended period, and the end to be accomplished by the rule would therefore not be frustrated or defeated in this case by vacating the default. Accordingly, the order denying the motion to vacate is reversed.
The Petition for Writ of Certiorari seeks to review an order in which the trial court refused to prevent Travelers from effecting certain discovery after the default had been entered. Since the effect of our decision in the interlocutory appeal will be to reinstate the issue of liability, the question involved on the Petition for Writ of Certiorari is moot.
The order appealed from in Case No. 76-788 is reversed and the Petition for Writ of Certiorari in Case No. 76-1362 is dismissed as moot.
CROSS and ALDERMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (24 total)
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Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982)…default is entered except under subdivision (d), the clerk shall return the paper to the party and notify him of the entry of the default. The clerk shall make an entry on the progress docket of the action taken. . See Travelers Ins. Co. v. Bryson, 341 So. 2d 1013 (Fla. 4th DCA 1977); and Board of Regents v. Hardin, 393 So. 2d 1134 (Fla. 1st DCA 1981). . See Miami Steel Traders, Inc. v. Ryder Truck Lines, Inc., 401 So. 2d 1146 (Fla. 3d DCA 1981). . Florida Rule of Civil Procedure 1.500(a) provides for defau…
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B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)…nyl Co., 379 So. 2d 448 (Fla.3d DCA 1980); McAlice v. Kirsch, 368 So. 2d 401 (Fla.3d DCA 1979); Salomon v. Mid-States Mortgage Corp., 356 So. 2d 915 (Fla.3d DCA 1978); 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.…
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Garcia Ins. Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977)…the former doctrine, appellate courts after Barber have not hesitated to reverse lower courts for failure to vacate defaults where excusable neglect and due diligence are demonstrated. See Fla.R.Civ.P. 1.540(b). In Travelers Insurance Co. v. Bryson, 341 So. 2d 1013 (Fla. 4th DCA 1977) suit was filed; the defendant secured one extension of time to plead by stipulation between counsel and moved for a second; the plaintiffs moved for a default and noticed the same for hearing as required by Fla.R.Civ.P. 1.500(b).…
Previewing 3 of 24 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)
- English v. Mary B. Hecht & the N. Forty Corp., 189 So. 2d 366 (Fla. 3d DCA 1966)
- Windhurst v. State, 320 So. 2d 870 (Fla. 4th DCA 1975)