BAKER v. DEIGERT

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District Court of Appeal of Florida,Fifth District.

Howard BAKER, Appellant, v. Daniel DEIGERT and Edith Deigert, Appellees.

No. 98-1754.

-- December 31, 1998

Terrance E. Schmidt, of Bledsoe, Schmidt, Lippes, & Moonly, P.A., Jacksonville, for Appellant. Robin H. Conner, Bedsole & Conner, St. Augustine, for Appellees.

We agree with appellant that the lower court erred in denying the motion to set aside the clerk's default due to lack of notice to defendant as required by the rule.   We, nevertheless, affirm the determination of the issue of liability in favor of the plaintiffs because we agree that the only arguably viable defense to liability-that the copy of the lease executed by the defendant was illegible-is legally insufficient.   Even if true, having elected to sign a lease whose terms he was unable to read, the defendant may not now repudiate it.

AFFIRMED.

Although I agree with the majority that the default should be set aside, I respectfully dissent from that portion which affirms the summary judgment.

Although I agree that it was extremely foolish, even negligent, for Baker to sign a lease with an illegible term, this fact, if true, would negate a “meeting of the minds” on the illegible provision.   If one simply fails to read a contract before signing it, we hold him responsible for whatever the contract provides as though he read it.   See Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, 467 So.2d 311, 312 (Fla. 5th DCA 1985).

However, Baker contends herein that he did read the lease and merely ignored that portion that was illegible and agreed to the balance.   The question is not whether he should be estopped from denying the intended terms of the lease, it is whether the lease presented to him properly contained a “no pets” provision.   An illegible provision is, to me, no provision at all.

GRIFFIN, C.J.

COBB, J., concurs.HARRIS, J., concurs in part;  dissents in part, with opinion.

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