Edwards v. Najjar, 3D99-1788.

• Decision Date: 26 January 2000
• Docket Number: No. 3D99-1788.,3D99-1788.
• Citation: 748 So.2d 1101
• Parties: Charles C. EDWARDS, Appellant, v. Elisha NAJJAR and Ruth Najjar, his wife, Jordan Najjar, Joshua Najjar, and Jesse Najjar, Appellees.
• Court: Florida District Court of Appeals

748 So.2d 1101

Charles C. EDWARDS, Appellant, v. Elisha NAJJAR and Ruth Najjar, his wife, Jordan Najjar, Joshua Najjar, and Jesse Najjar, Appellees.

No. 3D99-1788.

District Court of Appeal of Florida, Third District.

January 26, 2000.

Robert D. Hertzberg, Miami; Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., and Joel Perwin, Miami, for appellant.

Kluger, Peretz, Kaplan & Berlin, P.A., and Alan J. Kluger and Terri Meyers, Miami, for appellees. Before COPE, GREEN and FLETCHER, JJ.

COPE, J.

Charles C. Edwards appeals an order denying defendant-appellant Edwards' motion to vacate a default. We reverse.

Plaintiffs-appellees¹ sued defendant-appellant for breach of a limited partnership agreement which the parties had entered into for land development. At the end of November 1998, defendant was personally served with the complaint at his home in Baltimore, Maryland.

At the time of service, defendant was a professor of surgery with an active surgical practice. He was also a real estate developer and chairman of the board and majority shareholder of Kiwi Airlines. In the normal course, he received numerous (sometimes one hundred) pieces of mail daily at his home office, and managed his business affairs with the assistance of his wife.

Upon receiving the complaint, defendant placed it in his second priority stack of documents, to be handled after matters requiring immediate attention. Under normal circumstances, this stack of documents would have come back to his desk in due course for handling and disposition.

At this time, defendant's mail-handling system was disrupted by two significant events. First, the week before, the chief executive officer of Kiwi Airlines had resigned, and defendant had to become the acting chief executive officer in order to try to keep the airline flying. The defendant had a personal investment in the airline of twenty-one million dollars. The temporary assignment as chief executive officer required his personal presence in the corporate headquarter in New Jersey two days a week. The airline ultimately filed for bankruptcy in March of 1999.

Second, in December, the defendant's stepmother fell seriously ill, with what turned out to be her last illness. Defendant was in attendance at the hospital and helping oversee her treatment, but this was unavailing and she died later in the month.

The stepmother had personally managed the defendant's father's substantial estate. As a result of her illness, she could not carry out those responsibilities. Several boxes of business records relating to his father's estate were delivered to defendant. When the defendant's wife unloaded the boxes, she inadvertently stacked estate papers on top of the document pile containing the complaint in this case. The complaint was thus misplaced and never returned to the defendant's desk for action.

In February 1999, a default was entered in this case. A copy of the default was mailed to the defendant's home. Also in February plaintiffs' counsel mailed a notice for trial on damages to defendant's home. Defendant concedes that both documents must have been received at his home soon after they were mailed, but, owing to the extraordinary circumstances outlined above, he did not personally see either document.

In March 1999, the court sent out the order setting this case for a trial on damages. Defendant received this document and, although in expedited litigation with the Federal Aviation Administration over its attempt to revoke Kiwi Airlines' flying certificate, the defendant within a week placed the matter in the hands of Florida counsel, who subsequently moved to set aside a default.

The trial court took testimony from the defendant, who produced his entire calendar for the time period in question here. In the written order the court denied the motion because the defendant acknowledged he had been personally served and because the sending of the notice for trial in February, 1999 did not trigger a response at that time. The court concluded that the defendant had not demonstrated excusable neglect or due diligence. See Markowski v. Attel Bank Int'l, 701 So.2d 416, 418 (Fla. 3d DCA 1997) (outlining elements for setting aside a default). It is undisputed that the defendant has shown a meritorious defense. The defendant has appealed.

We respectfully disagree with the trial court's ruling. The main issue is whether there was excusable neglect, and we conclude that there was.

Florida has a long-standing policy in favor of deciding lawsuits on their merits. See North Shore Hosp., Inc. v. Barber, 143 So.2d 849, 852-53 (Fla.1962); Markowski v. Attel Bank Int'l, 701 So.2d at 417; Cinkat Transp., Inc. v. Maryland Cas. Co., 596 So.2d 746, 747 (Fla. 3d DCA 1992). Thus, "`* * * if there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and...