467 So. 2d 424 | Fla. Dist. Ct. App. | 1985
Dissenting Opinion
dissenting.
The neglect which the majority perceives as excusable, consists of a total failure by the insurance company to diary or forward the complaint for answer because of “clerical error.” The answer was due on December 12th and the default was entered on December 21st followed by the default final judgment on December 27th. The motion to set aside the default judgment was filed January 10th — 28 days after the answer was due.
A dissent is not the place for expanded discussion, but the Fourth District Court has turned the doctrine of excusable neglect every which way but loose.
. See, for example, Westinghouse Credit Corporation v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978) and compare it with County National Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981).
Lead Opinion
The record in this case discloses: (1) an unrebutted showing of excusable neglect for failing to file a responsive pleading, (2) a meritorious defense and (3) the exercise of due diligence to set aside a default final judgment. Consequently, we reverse the trial court’s order denying appellant/defendant’s motion to set aside a default and final judgment on the authority of Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla.1972); Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983); County National Bank v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981).