APPLE PREMIUM FINANCE SERVICE COMPANY, APPELLANT,
v.
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA AND CHASE BANK OF TEXAS NATIONAL ASSOCIATION F/K/A TEXAS COMMERCE BANK NATIONAL ASSOCIATION, APPELLEES
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Apple Premium Finance Service Company appealed an order denying its motion to set aside a default judgment. The Third District Court of Appeal reversed, holding that the trial court abused its discretion in denying the motion where defendant's failure to respond resulted from a misunderstanding with its own counsel and plaintiffs failed to serve notice of the default application on defense counsel who had expressed intent to defend.
The court reversed and remanded with directions to vacate the default, holding that excusable neglect was shown through the misunderstanding between defendant and its counsel regarding service, and that plaintiffs violated procedural requirements by failing to serve notice of the default application on defense counsel who had expressed intent to defend.
[1] A trial court's denial of a motion to vacate a default judgment is reviewed de novo when there is no factual dispute and the ruling is made as a matter of law.
[2] A defendant seeking to vacate a default final judgment must demonstrate excusable neglect, a meritorious defense, and due diligence in seeking relief.
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Join FLexlaw to unlock all legal intelligence“through a misunderstanding with their own counsel, defendants did not promptly notify counsel after being served”
Establishes the standard for excusable neglect in default cases
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Join FLexlaw to unlock all legal intelligencePrior to suit, there was presuit negotiation and settlement discussion between counsel for Apple and counsel for Teachers Insurance and Annuity Associ…
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COPE, J.
Apple Premium Finance Service Company appeals an order denying its motion to set aside a default. We reverse.
Prior to the filing of this lawsuit, there was presuit negotiation between counsel for defendant-appellant Apple and counsel for plaintiff-appellees Teachers Insurance and Annuity Association of America and Texas Commerce Bank National Association. This included correspondence between counsel and a presuit settlement conference between counsel and representatives of the respective clients.
In April 1998, plaintiffs served their complaint on defendant. By affidavit the defendant’s officers say they were under the impression that, as a matter of course, plaintiffs would simultaneously serve defense counsel with the complaint, and accordingly, defendant did not advise its counsel that it had been served. Since defense counsel was not aware that service had been accomplished, counsel did not file any response to the complaint. On the twenty-seventh day, the plaintiffs obtained a clerk’s default ex parte.
One month later, during a telephone conversation between defense counsel and defendant’s officers about a different matter, one of the officers mentioned the present lawsuit. Defense counsel immediately contacted plaintiffs counsel and learned that the clerk’s default had been entered. Defense counsel promptly filed a motion to vacate the default, supported by affidavits of defense counsel and defendant’s officers. The motion made a showing of meritorious defenses, including an answer and affirmative defenses.1 The motion to vacate the default was denied, and this appeal follows.
First, this court has held that excusable neglect is shown where, “[tjhrough a misunderstanding with their own counsel, defendants did not promptly notify counsel after being served.” Apolaro v. Falcon, 566 So. 2d 815, 816 (Fla. 3d DCA 1990). See also Atlantic Asphalt & Equipment Co., Inc. v. Mairena, 578 So. 2d 292, 293 (Fla. 3d DCA 1991); Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So. 2d 83, 83-84 (Fla. 3d DCA 1987); Somero v. Hendry General Hospital, 467 So. 2d 1103, 1105 (Fla. 4th DCA 1985); B.C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345, 1348 (Fla. 3d DCA 1981). “Florida has a strong public policy in favor of the resolution of disputes on their merits, and thus a policy of liberality in the vacating of defaults.” Apolaro, 566 So. 2d at 816 (citations omitted).
Second, “ ‘notice of an application for default should always be served when the plaintiff is aware that a defendant is being represented by counsel who has expressed an intention to defend on the merits.’” Ole, Inc. v. Yariv, 566 So. 2d 812, 815 (Fla. 3d DCA 1990) (quoting Gulf Maintenance & Supply, Inc. v. Barnett Bank, 543 So. 2d 813, 816 (Fla. 1st DCA 1989)); see Sklar v. Brawley, 651 So. 2d 1314 (Fla. 3d DCA 1995); Rapid Credit Corp. v. Sunset Park Centre, Ltd., 566 So. 2d 810, 811 (Fla. 3d DCA 1990); Cardet v. Resolution Trust Corp., 563 So. 2d 167, 169 & n. 2 (Fla. 3d DCA 1990). Plaintiffs should have followed that procedure here. Accordingly, we reverse the order under review and remand with directions to vacate the default.
. Plaintiffs do not dispute that defendant proceeded with due diligence to move to set aside the default, and that the defendant has made the necessary showing of meritorious defenses. See Markowski v. Attel Bank Int'l, 701 So. 2d 416, 418 (Fla. 3d DCA 1997).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Etienne v. Irvin, 45 Fla. L. Weekly D2032 (Fla. 3d DCA 2020)…y developed precedent. See Contreras v. Stambul, LLC, 45 Fla. L. Weekly D2032 (Fla. 3d DCA Aug. 26, 2020); U.S. Bank Nat’l Ass’n v. Lloyd, 981 So. 2d 633, 640 (Fla. 2d DCA 2008); Apple Premium Fin. Serv. Co. v. Teachers Ins. & Annuity Ass’n of Am., 727 So. 2d 1089, 1090 (Fla. 3d DCA 1999). Further compounding the procedural error, a timely-served motion to dismiss remained pending at the time Etienne sought and obtained the default final judgment. See Fla. R. Civ. P. 1.500(c) (“A party may plead or otherwis…
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M.W. v. SPCP Grp. V, LLC, 163 So. 3d 518 (Fla. 3d DCA 2015)…he cause of action.” Gulf Maint. & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813, 816 (Fla. 1st DCA 1989). On all fours with the instant case is Apple Premium Finance Service Co. v. Teachers Insurance & Annuity Association of America, 727 So. 2d 1089 (Fla. 3d DCA 1999). In Apple Premium, the plaintiff knew the defendant was represented by counsel and intended to defend on the merits. Exactly as occurred in this case, the plaintiff knew these facts only from pre-suit contacts with the defendant.…1 / 2
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Nat'l Union Fire Ins. Co. of Pittsburgh, P.A. v. McWILLIAMS, 799 So. 2d 378 (Fla. 4th DCA 2001)…ons between the attorney for the defaulting party and the attorney for the plaintiff and where the attorney for the defaulting party expressed an intention to defend the case. See Apple Premium Fin. Serv. Co. v. Teachers Ins. & Annuity Ass’n of Am., 727 So. 2d 1089 (Fla. 3d DCA 1999) (default should be set aside where there were pre-suit negotiations between counsel for both sides); Sklar v. Brawley, 651 So. 2d 1314 (Fla. 3d DCA 1995) (plaintiff improperly took a default without notice after actually communica…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Glenna Somero and Robert Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985)
- B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)
- Gulf Maint. & Supply, Inc. v. Barnett Bank OF Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989)
- Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA 1990)
- OLE, Inc. v. Yael Yariv, 566 So. 2d 812 (Fla. 3d DCA 1990)
- Carter v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987)
- Rapid Credit Corp. v. Sunset Park Ctr., Ltd., 566 So. 2d 810 (Fla. 3d DCA 1990)
- Cardet v. Resolution Tr. Corp., 563 So. 2d 167 (Fla. 3d DCA 1990)
- Markowski v. Attel Bank Int'l, 701 So. 2d 416 (Fla. 3d DCA 1997)
- Vidal v. State, 578 So. 2d 292 (Fla. 3d DCA 1991)