JAMES E. VELTRI, PETITIONER,

v.

MICHAEL LUKON AND MELBOURNE AVIATION, RESPONDENTS

PER CURIAM.

We decline to grant certiorari review of the trial court’s non-final order granting Respondent/Garnishee’s motion to vacate a default in this case for the reasons stated in In Interest of J.S., 404 So. 2d 1144 (Fla. 5th DCA 1981).

DENIED.

FRANK D. UPCHURCH and SHARP, JJ., concur. DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting.

I respectfully dissent. In my opinion the garnishee failed to satisfy the legal requirements regarding the setting aside of defaults. It has been consistently the ruling of all Florida appellate courts that in order to set aside a default there must be a showing of both a meritorious defense and excusable neglect. Here the trial judge found there was a meritorious defense and no prejudice to the plaintiff.

Failure to file an answer because “no one in the office was aware of the procedure to be followed with respect to it” is an insufficient legal basis to excuse neglect. Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984).

Because this is a garnishment proceeding the writ specifically tells the garnishee (appellee) that an answer must be filed within twenty days. For garnishee to say “no one ... was aware of the procedure ...” flies in the face of the clear language of the writ and common sense.

I would grant the writ.