
    AMEX INTERNATIONAL, INC., etc., Appellant, v. Gordon W. KUNDE, Appellee.
    No. 97-1929
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 1998.
    Rehearing Denied Jan. 5, 1999.
    Raymond A. McLeod, of McLeod, McLeod & McLeod, P.A., Apopka, for Appellant Amex International, Inc.
    Dana P. Hoffman and Jackson 0. Brown-lee, of Brownlee, Hoffman & Jacobs, P.A., Orlando, for Appellee Gordon W. Kunde.
   HARRIS, J.

The issue before us is whether the trial court abused its discretion in not setting aside a clerk’s default based on defendant’s motion alleging excusable neglect and meritorious defense. It is not contested that defendant alleged a meritorious defense; the issue is whether the defendant proved excusable neglect.

The affidavits submitted by defendant showed that service was perfected on its registered agent. When no answer was filed, the clerk entered a default. Prior to a default judgment, however, defendant moved to set aside-the default. Although not sure as to the exact date, the registered agent testified that she sent the complaint to the attorney for the corporate defendant. The attorney testified that the complaint never reached his office. The court refused to set aside the default because neither the registered agent nor the attorney admitted negligence. The court failed to consider that the fact that the complaint was lost in the mail is itself a ground for setting aside a default.

In Ponderosa, Inc. v. Stephens, 539 So.2d 1162, 1163 (Fla. 2d DCA 1989), the court held:

To be relieved of a default, a defendant must show excusable neglect, a meritorious defense, and that he used due diligence in seeking relief after learning of the default, (citations omitted). The record reveals that Ponderosa exercised due diligence in seeking relief from the default. Further, Ponderosa’s reliance upon its adjusting company to hire counsel followed by the loss of suit papers, which is verified by several affidavits, constitutes excusable neglect.

This record also reflects diligence and papers lost in the mail. When the policy of the law is to try cases on the merits, this should be sufficient to set aside a default when no judgment has been entered.

REVERSED and REMANDED for further action consistent with this opinion.

W. SHARP, J., concurs.

COBB, J., dissents with opinion.

COBB, J.,

dissenting.

A party seeking to set aside a default has the burden in the trial court of establishing excusable neglect and the existence of a meritorious defense. Jerry’s Pizza King International v. Peoples Acceptance Corp., 435 So.2d 393 (Fla. 5th DCA 1983). On appeal from the trial court’s ruling, reversal is proper only upon a showing of a gross abuse of discretion. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962).

The defendant presented the affidavit of its registered agent who averred that she was served with the plaintiffs complaint on or about April 1,1997 and forwarded it to the defendant’s attorney. Interestingly, the agent avers that she does not recall when she forwarded the documents, that because of a heavy workload, she may not have forwarded the documents immediately. The agent added that when she received the documents, she believed, based upon what she was told by the defendant’s attorney several years earlier, that she was no longer the defendant’s registered agent.

In Somero v. Hendry General Hospital, 467 So.2d 1103 (Fla. 4th DCA), rev. denied, 476 So.2d 674 (Fla.1985), the court explained that a default will not be set aside where the defaulted party or his attorney: (1) simply forgot, or (2) intentionally ignored the necessity to take appropriate action. In this case, the registered agent’s affidavit is clearly susceptible to the conclusion that she received service of process but failed (i.e., forgot) to forward the documents to the defendant’s counsel in a timely manner. Inaction due to forgetfulness does not typically establish excusable neglect. See Orlando Partners, Ltd. v. Classic Tour Lines, 492 So.2d 1117 (Fla. 3d DCA 1986), rev. dismissed, 497 So.2d 1217 (Fla.1986). This case is distinguishable from Misty Lake Condominium Association, Inc. v. Schwartz, 432 So.2d 638 (Fla. 3d DCA 1983) and the cases cited therein which involved inaction by a resident agent. In those cases, there was testimony as to an established procedure utilized by the registered agent. In this case, the agent testified to no established procedure or routine and in fact believed she was no longer the resident agent for the defendant. Under these circumstances, the trial court did not commit a gross abuse of discretion in concluding that the defendant failed to establish neglect which may be excused.

Accordingly, I dissent.  