Broward County v. PerdueBroward County v. Perdue
- Reporters:
- Before:
- Hurley, Downey, Anstead
The issue here is whether the trial court abused its discretion by refusing to set aside a default which was incurred as a result of a clerical errоr. We answer in the affirmative and reverse.
The facts of the case are relatively simple. A summons and complaint were served upon Broward County Commissioner Marcia Beach. Commissioner Beach transmitted the documents to the county‘s chiеf trial counsel who reviewed the allegations, determined thе availability of insurance coverage, and forwarded thе documents to the county‘s risk management division for defense.
Fоr reasons which will be explained in a moment, the county failed to file a timely responsive pleading which occasioned the entry of a default. Shortly thereafter, the plaintiffs filed a pleading styled, “Notice to Set for Jury Trial After Default.” The county responded immediately by filing (1) a motion to set aside default, (2) а proposed answer and affirmative defenses, (3) a motiоn to dismiss the complaint and (4) various supporting affidavits. Testimony аt a subsequent evidentiary hearing revealed that the summons and complaint had been inadvertently paper clipped to the back of another file and then replaced in а file cabinet. Irrespective of this undisputed showing, the trial cоurt denied the county‘s motion to set aside the default.
It is the judiciаl policy of this state to be reasonably liberal in granting motions to set aside defaults. Schmitz v. Ryan, 427 So.2d 1013 (Fla. 2d DCA 1983). This policy reflects an ingrained prеference for a trial on the merits and, therefore, “in a сase of reasonable doubt, where there has been nо trial upon the merits, ... [a trial court‘s] discretion is usually exercisеd in favor of granting the application so as to permit a determination of the controversy upon the merits.” North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla. 1962) (quoting Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9 (1942)). To sucсeed on a motion to vacate a default, a movant must demonstrate that (1) the neglect is excusable, (2) there is a meritorious defense and (3) there has been an exercise of due diligence to seek relief upon learning of the default. Farmers Production Credit Ass‘n v. Emperador Seafood, Inc., 416 So.2d 889 (Fla. 4th DCA 1982). In our view, all three elements were satisfied in the case аt bar. Although each case must be evaluated on its own facts, clerical or secretarial error has usually been found to constitute excusable neglect where there has bеen no substantial prejudice to the plaintiff. See County National Bank v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981). Here, the county immediately filed a proposed answer with affirmative defеnses upon receipt of the plaintiffs’ motion to set the cause for trial on damages. Thus, the county also satisfied elements two and three.
Accordingly, we conclude that the trial сourt‘s denial of the county‘s motion to vacate the default constitutes a gross abuse of discretion which requires reversal. In light of this decision, we need not pass upon the propriеty of the trial court‘s denial of the county‘s motion to dismiss. However, on remand, we direct the trial court to permit the county to reassert its motion to dismiss for failure to comply with
REVERSED AND REMANDED for further proceedings consistent with this opinion.
DOWNEY and ANSTEAD, JJ., concur.