La Nacion Newspaper, Inc. v. Rivero

478 So. 2d 451, 10 Fla. L. Weekly 2520, 1985 Fla. App. LEXIS 16677

• Court: District Court of Appeal of Florida
• Decided: November 12, 1985
• Docket: No. 85-407
• Status: Published

Opinion

PER CURIAM.

Defendant, La Nación Newspaper, Inc., appeals from a final judgment awarding plaintiff compensatory and punitive damages for a series of allegedly defamatory articles which appeared in the newspaper.

Plaintiff initiated a libel action in circuit court seeking damages flowing from the articles published by defendant. A default was entered against defendant for failure to respond timely to the action. The clerk, however, accepted and filed defendant’s answer after default was entered.

Where the defendant’s answer to a complaint was submitted ten days after default was entered, the clerk should not have filed the answer, but instead should have returned the papers and notified defendant of the default. Fla.R.Civ.P. 1.500(c).

The record shows that the defendant first became aware of the default over three weeks later when the case was set for trial on damages. A subsequent motion to set aside the default was denied.

Appellant did not engage in dilatory tactics, filed a timely motion to set aside the default, and filed an affidavit stating grounds of excusable neglect and an answer which set forth a meritorious defense. Refusal to set aside the default on these facts was an abuse of discretion. Pedro Realty, Inc. v. Silva, 399 So.2d 367 (Fla. 3d DCA 1981), approved, 411 So.2d 872 (Fla.1982).

Reversed and remanded for a new trial on liability and damages.