Opinion
No. 94-906.
July 5, 1994.
An appeal of a non-final order from the Circuit Court of Dade County; Jon I. Gordon, Judge.
Coll Davidson Carter Smith Salter Barkett and Barry Davidson and Ted C. Craig, Miami, for appellant.
Eric J. Braunstein, Plantation, for appellee.
Before HUBBART, BASKIN and COPE, JJ.
This is an appeal by the defendant WJA Realty, Limited Partnership from a non-final order denying the defendant's motion to set aside (1) a clerk's default on a three-count complaint and (2) a subsequent final judgment entered thereon. We have jurisdiction to entertain this appeal. Art. V, § 4(b)(1), Fla. Const.; Fla.R.App.P. 9.130(a)(3)(C)(iv), (a)(5).
We reverse the orders under review and remand the cause to the trial court with directions to set aside the clerk's default and final judgment entered thereon. We reach this result because the defendant demonstrated below (1) excusable neglect in failing to respond timely to the plaintiff's complaint due to a miscommunication between the defendant and its counsel that counsel was being retained to respond to the subject complaint, see Somero v. Hendry General Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA), rev. denied, 476 So.2d 674 (Fla. 1985); B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981); (2) a meritorious defense with the answer and affirmative defenses attached to its motion to vacate, see Somero; B.C. Builders Supply Co.; and (3) due diligence in moving to set aside the clerk's default upon learning of the default. See Cunningham v. White, 390 So.2d 467, 468 (Fla. 3d DCA 1980). We have not overlooked the plaintiff's contrary arguments, but are not persuaded by them.
Reversed and remanded.