Bequer v. National City Bank
46 So. 3d 1199
| Fla. Dist. Ct. App. | 2010Background
- Default was entered against appellee on November 19, 2009 for failure to plead timely.
- Appellee received multiple notices (November 20, December 15, January 7) with the default and proposed judgments.
- A default final judgment was entered January 20, 2010 for $90,865.93 including prejudgment interest.
- Appellee filed a motion to set aside the default and default final judgment on February 9, 2010, with supporting affidavits.
- Affidavits claimed national policies to respond timely and that outside counsel was not notified; one affiant did not recall service of the complaint.
- Trial court granted the motion to vacate the default, concluding the issue involved excusable neglect, but remanded for further evaluation of standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in setting aside the default | Bequer contends excusable neglect shown. | National City contends neglect was not excusable due to notice | Reversed; failure to show excusable neglect; default not vacated |
Key Cases Cited
- Hurley v. Government Employees Insurance Co., 619 So.2d 477 (Fla. 2d DCA 1993) (gross negligence bar to excusable neglect)
- Otero v. Government Employees Insurance Co., 606 So.2d 443 (Fla. 2d DCA 1992) (continuing flood of pleadings; gross negligence)
- Elliott v. Aurora Loan Servs., LLC, 31 So.3d 304 (Fla. 4th DCA 2010) (public policy favoring merits; rule 1.540(b) elements)
- Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300 (Fla. 2d DCA 2004) (standard of review for gross abuse of discretion)
- DND Mail Corp. v. Andgen Props., LLC, 28 So.3d 111 (Fla. 4th DCA 2010) (gross abuse of discretion standard in vacating defaults)