Hialeah, Inc. v. Adams, 90-496
| Decision Date | 04 September 1990 |
| Docket Number | No. 90-496,90-496 |
| Citation | 566 So.2d 350 |
| Parties | 15 Fla. L. Weekly D2206 HIALEAH, INC., d/b/a Hialeah Park, Appellant, v. Ron A. ADAMS, et al., Appellees. |
| Court | Florida District Court of Appeals |
Colodny, Fass & Talenfeld, and Donna S. Glick, North Miami, and Cindy R. Post, Miami, for appellant.
Steel Hector & Davis and Peter M. Kramer, Miami, for appellees.
Before BASKIN, JORGENSON and GODERICH, JJ.
On December 2, 1989, the plaintiffs filed a complaint against the defendant, Hialeah, Inc., d/b/a Hialeah Park. The return of service reflects that one of the defendant's employees received the complaint and summons on December 6, 1989. The defendant, however, failed to respond to the complaint. As a result, on December 29, 1989, the trial court entered a default and on January 2, 1990, it entered the final default judgment.
On January 13, 1990, the defendant filed a motion to vacate the default and final default judgment, along with its proposed answer and affirmative defenses. The defendant's registered agent's affidavit was attached to the motion to vacate. The affidavit stated that the clerical staff "inadvertently mishandled" the summons and complaint as a result of the ongoing litigation and that the documents were not discovered until after final default judgment had been entered. On February 2, 1990, the trial court denied the motion to vacate solely on the basis that the registered agent's affidavit failed to establish excusable neglect. Additionally, the court stated that the defendant should have filed an affidavit from the person who was purportedly served with process.
On February 8, 1990, the defendant filed a second motion to vacate and a motion for rehearing. Attached was an affidavit from the employee who received the complaint and summons. The affidavit stated that she had no knowledge of the service of the complaint and it set forth the office procedure for handling suit papers. On March 2, 1990, the trial court denied the motions reasoning that the defendant was not entitled to "two bites of the apple."
The defendant contends that the trial court abused its discretion in denying the motion to vacate. We agree. As stated earlier, the trial court denied the motion based solely on the fact that it felt that the registered agent's affidavit failed to establish excusable neglect. A defendant's neglect in responding to a complaint is excusable when the inadvertence was due to the mishandling or misfiling...
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