Florida District Courts of Appeal, 1990

Rosado v. Last Great American Enterprises, Inc.

Rosado v. Last Great American Enterprises, Inc.
Florida District Courts of Appeal · Decided June 14, 1990 · Cobb, Dauksch, Peterson
562 So. 2d 421; 1990 Fla. App. LEXIS 4184; 1990 WL 79109 (Southern Reporter, Second Series)

Rosado v. Last Great American Enterprises, Inc.

Opinion of the Court

DAUKSCH, Judge.

This is an appeal from an order denying relief under Florida Rule of Civil Procedure 1.540.

*422Because appellant has set forth sufficient grounds to demonstrate excusable neglect and has asserted a meritorious defense we reverse the order denying the motion to set aside the final judgment and default.

Briefly, the facts are that appellant served his pro se answer by mail one day prior to the date the clerk of the court erroneously advised him was the due date of filing with the court. The original answer was received in the clerk’s office on the day after service in compliance with the clerk’s erroneous directions, but not until the 26th day after the complaint had been served. Under these facts we must agree with appellant that excusable neglect was demonstrated. See Nasrallah v. Smith, 538 So.2d 554 (Fla. 5th DCA 1989); Roche v. Comm. Technical Consultants Co., 534 So.2d 1243 (Fla. 5th DCA 1988); Gibralter Serv. Corp. v. Lone & Ass’s, Inc., 488 So.2d 582 (Fla. 4th DCA 1986); Kuehne & Nagel, Inc. v. Esser Intern., Inc., 467 So.2d 457 (Fla. 3d DCA 1985).

The order is reversed and this cause remanded.

REVERSED and REMANDED.

PETERSON, J., concurs. COBB, J., concurs specially with opinion.

Concurring Opinion

COBB, Judge,

concurring specially.

I concur in the result reached by the majority based on the wording of the order entered by the trial court subsequent to the hearing on the motion to set aside the default and judgment:

The Court has listened very carefully to the argument of counsel and considered the authorities and done independent research into the facts alleged in the Motion, and the Court is convinced that the Motion is without merit and that the Motion to Set Aside Final Judgment and Default should be denied.

The trial court did not reject the affidavit of Rosado on the basis of inherent incredibility nor did it require live testimony subject to cross-examination. Any “independent research into the facts” by a trial court is, of course, an improper basis for a judicial determination.

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