LINCOLN AMERICAN LIFE INS. CO., APPELLANT,
v.
MARCELLA PARRIS, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Lincoln American Life Insurance Co. appeals from a trial court's denial of its motion to set aside a default judgment entered when the company's answer was signed by an out-of-state attorney not admitted to practice in Florida. The appellate court reversed, finding the default resulted from excusable neglect despite the unauthorized practice violation.
The court reversed and held that the default should be set aside because it resulted from excusable neglect. Although the unauthorized practice of law by the out-of-state attorney deserved rebuke, the violation was sufficiently mitigated by the short time available to arrange for Florida counsel and the attorney's apparent intention to secure Florida counsel for future appearances. The company also demonstrated a meritorious defense.
[1] A default entered by the clerk may be set aside upon a showing of excusable neglect and a meritorious defense.
[2] Service of an answer by mail is complete upon mailing.
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“service was "complete upon mailing." Fla. R.Civ.P. 1.080(b).”
Establishes that the answer was timely served under Florida Rules when deposited in the mail one day before the due date
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLincoln American was served through the Insurance Commissioner as its agent. The company's answer was served by mail one day before the due date, but …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Pro Hac Vice Appearance cases and more on FLexlaw
ROBERT P. SMITH, Jr., Judge.
Lincoln American appeals from a trial court order denying its motion to set aside a default, entered by the clerk upon Lincoln American’s apparent failure to serve and file its answer promptly on the due date. Initial service of process was made on the Insurance Commissioner as agent for the insurer, headquartered out of this state. In fact Lincoln American’s answer was served by mail one day before the due date, and service was “complete upon mailing.” Fla. R.Civ.P. 1.080(b). The default was entered on the day after the due date, three days before the clerk received the tendered answer by mail.
The trial court did not regard the answer as too tardily filed after “service,” Fla.R.Civ.P. 1.080(d), but treated it as a nullity because it was signed by a Memphis, Tennessee lawyer who was not admitted to practice in Florida, though others in his Memphis firm were so admitted. We quite agree with the circuit court that the lawyer’s casual practice of appearing in a foreign court without permission, Fla.R. Jud.Admin. 2.060(b), deserves rebuke; yet we also think the lawyer’s violation is mitigated-at least sufficiently to avoid this harsh result to his client-by the shortness of time available to arrange for Florida counsel to serve a timely answer, and by counsel’s apparent intention to secure Florida counsel for further appearances.
Therefore, trusting that Lincoln American’s Tennessee counsel will develop other more appropriate means to protect their client’s interests in such situations, we think the default should be considered the result of excusable neglect. There was an ample showing of a meritorious defense. Fla.R. Civ.P. 1.540(b).
REVERSED.
BOOTH and SHAW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Szteinbaum v. Kaes Inversiones y Valores, 476 So. 2d 247 (Fla. 3d DCA 1985)…42, 83 N.W. 2d 904 (1957), considered the extent of the non-lawyer’s participation in the case and concluded that where a non-lawyer’s participation was minimal, the justifications for dismissal are few. In Lincoln American Life Insurance v. Parris, 390 So. 2d 148 (Fla. 1st DCA 1980), the court held that a default, entered because the answer was signed by an attorney not admitted to practice in Florida, would be considered the result of excusable neglect in view of the shortness of time available to arrange f…
-
Torrey v. Leesburg Reg'l Med. Ctr., 769 So. 2d 1040 (Fla. 2000)…han January 5, 1998, given the tolling of the statute during the ninety-day presuit period. The court dismissed the plaintiffs complaint without prejudice on June 22, 1998, relying on rule 2.060(b) and Lincoln American Life Insurance Co. v. Parris, 390 So. 2d 148 (Fla. 1st DCA 1980). In Lincoln, the First District reversed a trial court’s denial of a motion to set aside a default where the trial court treated the defendant’s answer to the plaintiffs complaint as a nullity because it was signed by a lawyer no…