Lanza v. Allied Trucking of Florida, Inc.

• Decision Date: 11 January 2006
• Docket Number: No. 3D05-53.,3D05-53.
• Citation: 930 So.2d 633
• Parties: Alex LANZA, Appellant, v. ALLIED TRUCKING OF FLORIDA, INC., Appellee.
• Court: Florida District Court of Appeals

Page 633

930 So.2d 633

Alex LANZA, Appellant, v. ALLIED TRUCKING OF FLORIDA, INC., Appellee.

No. 3D05-53.

District Court of Appeal of Florida, Third District.

January 11, 2006.

Rehearing Denied June 16, 2006.

Mark J. Feldman, Miami, for appellant.

Marlow, Connell, Abrams, Adler, Newman & Lewis and Alejandro (Alex) Suarez, Miami, for appellee.

Before LEVY, RAMIREZ, and SUAREZ, JJ.

SUAREZ, J.

Alex Lanza appeals an order vacating a default and the entry of a final summary judgment in favor of the appellee, Allied Trucking of Florida, Inc. ("Allied"). We affirm the setting aside of the default and reverse the final summary judgment.

Lanza brought a negligence action against Allied. He alleges Allied failed to properly install a canvas cover over a trailer containing construction debris which Lanza transported to the dump. He claims the canvas became stuck while he was attempting to remove it—causing him to fall from the trailer and to sustain injuries. Lanza obtained a default against Allied on January 3, 2003. On January 31, 2003, Allied moved to set aside the default. On April 8, 2004, after a stay of the proceedings, the trial court granted Allied's Motion to Set Aside Default.

We affirm the granting of Allied's Motion to Set Aside Default. A party moving to set aside a default must show excusable neglect, a meritorious defense, and due diligence in moving to set aside the default. See Venero v. Balbuena, 652 So.2d 1271 (Fla. 3d DCA 1995).¹ Attorneys for Allied filed two affidavits to support the claims of excusable neglect and due diligence. The affidavits established that the complaint was faxed to the defense attorneys' office but due to vacations of certain office personnel, it was not timely responded to. Failure to set aside a default is an abuse of discretion where excusable neglect has been shown. See, e.g., Okeechobee Imps. Inc. v. Am. Sav. & Loan Ass'n, 558 So.2d 506 (Fla. 3d DCA 1990) (employee's failure to follow established corporate procedure in processing complaint constitutes excusable neglect); Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So.2d 83 (Fla. 3d DCA 1987) (tardiness in answering occasioned by breakdown in defendant's established office practice constitutes excusable neglect); Kuehne & Nagel, Inc. v. Esser Int'l, Inc., 467 So.2d 457 (Fla. 3d DCA 1985) (employee's mistake in filing away summons and complaint constitutes excusable neglect). As the affidavits establish excusable neglect recognized by the courts and the motion to set aside was filed within a reasonable time after learning of the default, the trial court was correct in granting the motion.

On August 6, 2004, Allied moved for summary judgment. In support of the motion, it attached an affidavit of...