Marine Outlet v. Miner
| Decision Date | 29 May 1985 |
| Docket Number | No. 84-2661,84-2661 |
| Citation | 469 So.2d 251,10 Fla. L. Weekly 1349 |
| Parties | 10 Fla. L. Weekly 1349 MARINE OUTLET, a Florida partnership, Marine Outlet, Inc., a Florida corporation and Marine Outlet Sales, Inc., a Florida corporation, Appellants, v. Mabel MINER and Ruth Zacharie, Appellees. |
| Court | Florida District Court of Appeals |
Lewis F. Collins, Jr. and Claire L. Hamner of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellants.
Dennis J. Plews, Bradenton, for appellees.
Marine Outlet, Marine Outlet, Inc. and Marine Outlet Sales, Inc., defendants below, appeal the trial court's denial of their motion to vacate a clerk's default. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). Silva v. Pedro Realty, Inc., 411 So.2d 872 (Fla.1982); Doctor's Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla.1982).
Mabel Miner, age 73, and her sister, Ruth Zacharie, age 75, were injured when attacked by a German shepherd dog while riding their adult tricycles. The attack took place on a street adjacent to property owned by Marine Outlet, a partnership consisting of two partners, Marine Outlet, Inc. and Marine Outlet Sales, Inc. (hereinafter referred to as Marine Outlet). Miner and Zacharie sued the partnership and both its partners for damages.
Prior to the expiration of the twenty-day period in which Marine Outlet had to file its answer, Marine Outlet's insurance adjuster, Paul Reeley, contacted Miner and Zacharie's attorney's office. Reeley spoke with the attorney's secretary about an extension of time in which to file Marine Outlet's answer. Although the parties dispute the substance of the conversation, the trial court found that, after the conversation, Reeley believed that a default would not be taken if the answer was not timely filed. No answer was filed by the end of the twenty-day period, and one day later the plaintiffs' attorney obtained a clerk's default. The trial court denied Marine Outlet's motion to vacate the default.
To justify setting aside a default, the defaulted party must show both excusable neglect and a meritorious defense. Savela v. Fisher, 464 So.2d 240 (Fla. 2d DCA 1985); Kapetanopoulos v. Herbert, 449 So.2d 947 (Fla. 2d DCA 1984). The trial court's finding that Reeley believed that no default would be filed if the answer was not timely filed is excusable neglect of Marine Outlet's duty to timely answer the complaint. American Republic Insurance Co. v. Westchester General Hospital, 414 So.2d 1163 (Fla. 3d DCA 1982); B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981).
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DeRuyter v. State
...neglect and that a meritorious defense exists. Tire Kingdom, Inc. v. Bowman, 480 So.2d 221 (Fla. 5th DCA 1985); Marine Outlet v. Miner, 469 So.2d 251 (Fla. 2d DCA 1985); Wentnick v. European American Bank, 487 So.2d 382 (Fla. 4th DCA 1986); Quality Electric Service v. Seymour Electric Suppl......
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...order. Fla.R.App.P. 9.130(a)(3)(C)(iv); Doctor's Hosp. of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla.1982); Marine Outlet v. Miner, 469 So.2d 251 (Fla. 2d DCA 1985). The trial court's order denying the motion for reconsideration of that order, however, is not appealable. A motion for re......
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Cole v. Blackwell, Walker, Gray, Powers, Flick & Hoehl, 86-2129
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