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Carter, Hawley, Hale Stores v. Whitman

District Court of Appeal of Florida, Third District
Dec 8, 1987
516 So. 2d 83 (Fla. Dist. Ct. App. 1987)

Summary

holding that neglectful, but understandable breakdown in defendant's established office practice that resulted in the complaint being lost on the desk of general counsel constituted excusable neglect

Summary of this case from Noel v. James B. Nutter & Co.

Opinion

No. 87-1781.

December 8, 1987.

Appeal from the Circuit Court, Dade County, John A. Tanksley, J.

Blackwell, Walker, Fascell Hoehl and Anthony D. Dwyer and Diane Tutt, Miami, for appellant.

Katz, Barron, Squitero Faust and Robert C. Grady, Miami, for appellees.

Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.


This is an appeal from an order denying a motion to vacate a default. The record shows that the tardiness in answering was occasioned by a neglectful, but understandable, breakdown in the corporate defendant's established practice which occurred when the complaint, which had been transmitted from Florida to the corporate secretary at the company's national headquarters in Los Angeles, became "lost" in a pile of unrelated documents on the desk of the general counsel, who was responsible for retaining a local attorney to file an appropriate response. It has been often held that such a scenario constitutes "excusable neglect," Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla. 1972); Kuehne Nagle, Inc. v. Esser Int'l, Inc., 467 So.2d 457 (Fla. 3d DCA 1985); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976); Plotkin v. Deatrick Leasing Co., 267 So.2d 368 (Fla. 3d DCA 1972); Renuart-Bailey-Cheely Lumber Supply Co. v. Hall, 264 So.2d 84 (Fla. 3d DCA 1972); Imperial Indust., Inc. v. Moore Pipe Sprinkler Co., 261 So.2d 540 (Fla. 3d DCA 1972); see also Credit Gen. Ins. Co. v. Thomas, 515 So.2d 336 (Fla. 3d DCA 1987), and we do so again. Since it is conceded that the defendant presented a meritorious defense and that it acted with due diligence after discovering the default, we apply our established rules which militate against defaults and in favor of trying cases on their merits, see Kuehne Nagle, Inc., 467 So.2d at 458, and reverse the order below.

The appellee relies upon a letter, concerning the ongoing dispute which was the subject of the case, which was mailed to the defendant and its general counsel after the filing of the complaint but before it was served. We cannot agree that this document, in which there was arguably some reference to the fact that an action had been commenced, had any effect either upon the duties of the general counsel or the defendant itself to respond to service which had not yet been effected or the degree of fault involved in not timely doing so.

Reversed.


Summaries of

Carter, Hawley, Hale Stores v. Whitman

District Court of Appeal of Florida, Third District
Dec 8, 1987
516 So. 2d 83 (Fla. Dist. Ct. App. 1987)

holding that neglectful, but understandable breakdown in defendant's established office practice that resulted in the complaint being lost on the desk of general counsel constituted excusable neglect

Summary of this case from Noel v. James B. Nutter & Co.

finding mistake under 1.540(b) where complaint "became ‘lost’ in a pile of unrelated documents"

Summary of this case from Rymed Techs. v. KIG, LLC

concluding that a corporate defendant was entitled to relief from a default that resulted from tardiness in answering, because tardiness was due to fact that complaint, which had been transmitted from Florida to corporate secretary at company's national headquarters in Los Angeles, became "lost" in pile of unrelated documents on desk of general counsel, who was responsible for retaining local attorney to file an appropriate response, and that corporate defendant admittedly presented a meritorious defense and acted with due diligence after discovering the default

Summary of this case from Miami-Dade v. Coral Bay

reversing trial court's order denying appellant corporation's motion to vacate a default, because appellant's delay in answering appellee retailer's complaint constituted excusable neglect, and appellant acted with due diligence after discovering the default.

Summary of this case from Proenza v. SunTrust Banks
Case details for

Carter, Hawley, Hale Stores v. Whitman

Case Details

Full title:CARTER, HAWLEY, HALE STORES, INC., A DELAWARE CORPORATION, APPELLANT, v…

Court:District Court of Appeal of Florida, Third District

Date published: Dec 8, 1987

Citations

516 So. 2d 83 (Fla. Dist. Ct. App. 1987)

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Miami-Dade v. Coral Bay

Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So.2d 83, 83-84 (Fla. 3d DCA 1987) ( citing, inter alia,…

Thomson McKinnon Securities v. Belsky

By this non-final appeal we are called upon to review the propriety of an order denying a motion to vacate a…