J. Boyd Roofing Co. v. Seibels Bruce Insurance Co.

District Court of Appeal of Florida

J. Boyd Roofing Co. v. Seibels Bruce Insurance Co.

601 So. 2d 1237, 1992 Fla. App. LEXIS 6865, 1992 WL 131800

CourtDistrict Court of Appeal of Florida

DecidedJune 17, 1992

DocketNo. 92-0089

StatusPublished

This text of 601 So. 2d 1237 (J. Boyd Roofing Co. v. Seibels Bruce Insurance Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

J. Boyd Roofing Co. v. Seibels Bruce Insurance Co., 601 So. 2d 1237, 1992 Fla. App. LEXIS 6865, 1992 WL 131800 (Fla. Ct. App. 1992).

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Opinion

PER CURIAM.

This is an appeal from an order denying motions for relief from judgment, to set aside default, and to quash service of process. In the trial court appellant tendered a facially meritorious defense; however, appellant has not alleged either excusable neglect or due diligence in seeking to set aside the default. This is fatal to appellant’s position on appeal. See, e.g., World’s Finest Products, Inc. v. Carpenter, 564 So.2d 626 (Fla. 4th DCA 1990); Schneiderman v. Cantor, 546 So.2d 51 (Fla. 4th DCA 1989). We reject appellant’s contention that the order in question is void rather than voidable, accepting instead the rationale of Adams v. Knabb Turpentine Co., 435 So.2d 944, 947 (Fla. 1st DCA 1983), that “a defense based upon the corporation survival statute [§ 607.297] should be treated like a defense based on the statute of limitations in that the statute should be set out as an affirmative defense....” Such a defense is deemed waived if not [1238]*1238timely raised. We find such waiver here where appellant initially failed to timely file any defenses and subsequently failed to establish a basis for setting aside the original default.

AFFIRMED.

HERSEY, STONE and POLEN, JJ., concur.

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PER CURIAM.

This is an appeal from an order denying motions for relief from judgment, to set aside default, and to quash service of process. In the trial court appellant tendered a facially meritorious defense; however, appellant has not alleged either excusable neglect or due diligence in seeking to set aside the default. This is fatal to appellant’s position on appeal. See, e.g., World’s Finest Products, Inc. v. Carpenter, 564 So.2d 626 (Fla. 4th DCA 1990); Schneiderman v. Cantor, 546 So.2d 51 (Fla. 4th DCA 1989). We reject appellant’s contention that the order in question is void rather than voidable, accepting instead the rationale of Adams v. Knabb Turpentine Co., 435 So.2d 944, 947 (Fla. 1st DCA 1983), that “a defense based upon the corporation survival statute [§ 607.297] should be treated like a defense based on the statute of limitations in that the statute should be set out as an affirmative defense....” Such a defense is deemed waived if not [1238]*1238timely raised. We find such waiver here where appellant initially failed to timely file any defenses and subsequently failed to establish a basis for setting aside the original default.

AFFIRMED.

HERSEY, STONE and POLEN, JJ., concur.

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Bluebook (online)

601 So. 2d 1237, 1992 Fla. App. LEXIS 6865, 1992 WL 131800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-boyd-roofing-co-v-seibels-bruce-insurance-co-fladistctapp-1992.

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