THE DINERS CLUB, INC., APPELLANT,
v.
DONALD F. BRACHVOGEL AND GLADYS BRACHVOGEL, APPELLEES
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PER CURIAM.
Affirmed on the authority of Shafey v. Tease, 332 So. 2d 137 (Fla.3d DCA 1976).
SCHWARTZ, Judge
(especially concurring).
Mr. and Mrs. Brachvogel were both sued by the Diners Club on their credit card account. At the time, they were living together in the marital home. Mr. Brach-vogel was personally served; substituted service was, as she admits, regularly effected on Mrs. Brachvogel in accordance with Section 48.031, Florida Statutes (1975) by serving her husband at the home which was her “usual place of abode.” Neither of the Brachvogels answered and a default judgment was entered against both of them. Some months later, Mrs. Brachvogel moved to set aside the judgment as against her under Fla.R.Civ.P. 1.540(b) on the ground that her husband had never delivered the suit papers to her and that the default judgment was therefore the product of her “excusable neglect.” The trial judge granted the motion, and the plaintiff took this interlocutory appeal pursuant to Fla.R. App.P. 9.130(a)(5).
If the issue had not been previously decided in this district, I would vote to reverse the order under review on the authority of Barnett Bank of Clearwater, N.A. v. Folsom, 306 So. 2d 186 (Fla.2d DCA 1975), which is persuasive, well-reasoned and directly on point. However, in Shafey v. Tease, 332 So. 2d 137 (Fla.3d DCA 1976), we held directly to the contrary of the holding in Folsom. 1 am unable to reconcile Folsom and Shafey, but I am similarly unable to distinguish Shafey from the case at bar. Because I feel bound to follow a prior and controlling decision rendered by this court on the same point of law, I concur in af-firmance on the authority of Shafey v. Tease, supra.
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Diners Club, Inc. v. Brachvogel, 395 So. 2d 1156 (Fla. 1980)…McDonald, justice. This cause is before the Court on petition for writ of certiorari to review the decision of the Third District Court of Appeal, reported at 370 So. 2d 443 (Fla.3d DCA 1979). The district court affirmed without opinion a circuit court order vacating a default judgment against Mrs. Brachvogel. Finding apparent conflict between that decision and Barnett Bank of Clearwater, N. A. v. Folsom, 306 So. 2d 186…
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Cont'l Video Corp. v. Honeywell, Inc., 422 So. 2d 35 (Fla. 3d DCA 1982)…laint. Nicholas v. Miami Burglar Alarm Co., 266 So. 2d 64 (Fla. 3d DCA 1972); see, Nicholas v. Miami Burglar Alarm Co., 339 So. 2d 175 (Fla.1976). . I have taken similar positions in specially concurring opinions in Diners Club, Inc. v. Brachvogel, 370 So. 2d 443 (Fla. 3d DCA 1979), cert. discharged, 395 So. 2d 1156 (Fla.1980); Valenstein v. Doctors Hospital, 372 So. 2d 1169 (Fla. 3d DCA 1979); Norton v. South Miami Hospital Foundation, Inc., 375 So. 2d 42 (Fla. 3d DCA 1979); and Schoenbrod v. O’Neill, 375 S…
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Norton v. S. Miami Hosp. Found., Inc., 375 So. 2d 42 (Fla. 3d DCA 1979)…irst been pursued. . See also Schoenbrod v. O'Neil, 375 So. 2d 42 (Fla. 3d DCA 1979) (specially concurring opinion); Valenstein v. Doctors Hospital, 372 So. 2d 1169 (Fla. 3d DCA 1979) (specially concurring opinion); Diners Club, Inc. v. Brachvogel, 370 So. 2d 443 (Fla. 3d DCA 1979) (specially concurring opinion).…
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- Barnett Bank OF Clearwater, N.A. v. Folsom, 306 So. 2d 186 (Fla. 2d DCA 1975)
- Sherif Shafey, M.D. v. Tease, 332 So. 2d 137 (Fla. 3d DCA 1976)