Rosado v. Last Great American Enterprises, Inc.

Full title: ANGEL ROSADO, APPELLANT, v. LAST GREAT AMERICAN ENTERPRISES, INC., APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Jun 14, 1990

562 So. 2d 421 (Fla. Dist. Ct. App. 1990)

Opinion

No. 89-514.

June 14, 1990.

Appeal from the Circuit Court, Orange County, Cecil H. Brown, J.

Angel Rosado, Orlando, in pro. per.

Ann E. Colby of Fowler, Williams Airth, P.A., Orlando, for appellee.

DAUKSCH, Judge.

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

Because 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); Gibraltar 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.

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.