Rosado v. Last Great American Enterprises, Inc.

DAUKSCH, Judge. This is an appeal from an order denying relief under Florida Rule of Civil Procedure 1.540. [422] 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); 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.