ALFRED ANISH, APPELLANT,
v.
AMRITLAL TOPIWALA AND SUNNYLAND REFLECTIONS, INC., APPELLEES

Fla. 3d DCA | 1983-05-10
No. 83-217
Before ■ BARKDULL, HUBBART, and NESBITT, JJ.
430 So. 2d 990 Florida District Court of Appeal, Third District (1983) Positive Treatment
Cited by 7 cases

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Synopsis

Alfred Anish appeals a circuit court order granting partial final judgment determining liability against him based on a default judgment. The Third District Court of Appeal affirmed, holding that Anish's failure to respond to a default order clarifying the court's expectations constituted inexcusable neglect, regardless of confusion created by attorney changes and a codefendant's bankruptcy advice.


Holding

The trial court did not abuse its discretion. Anish's failure to comply with the May 20, 1981 court order—which clearly provided that the default would be vacated upon filing a response within 15 days—constituted inexcusable neglect, notwithstanding confusion from attorney changes and codefendant Kaiser's bankruptcy advice.


Headnotes

[1] A trial court has broad discretionary power to determine whether facts constitute excusable neglect to justify vacating a default.

[2] Reversal of a trial court's ruling on excusable neglect requires a showing of a gross abuse of discretion.

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Key Quotes

“The trial court is vested with broad discretionary power in making a determination of whether or not the facts constitute excusable neglect to justify vacating a default.”

Establishes the standard of review: trial court has broad discretion, and reversal requires showing of gross abuse of discretion.

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Facts & Procedural History

Anish was sued in an amended complaint filed November 5, 1980. His first attorney withdrew November 26, 1980; his second attorney failed to respond to…

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Opinion of the Court
NESBITT, Judge.

NESBITT, Judge.

Anish, one of the defendants below, seeks reversal of a circuit court order granting a partial final judgment determining liability in favor of the plaintiff. We affirm.

Following the dismissal of a complaint,’ an amended complaint was filed against Anish, Kaiser, and two other defendants on November 5, 1980.

On November 26, 1980, the attorney for Anish filed a motion to withdraw as counsel. Anish retained new counsel who failed to respond to the amended complaint.

On February 11, 1981, co-defendant Kaiser filed a voluntary petition for bankruptcy in federal court and advised Anish that the bankruptcy petition stayed the proceedings against Anish. Subsequently, plaintiff’s counsel filed a motion for default against Anish, and again, Kaiser advised that no action need be taken because of the automatic stay. One week later, Anish’s second attorney was granted leave to withdraw from the case. Thereafter, when Anish had no counsel of record a default was entered on May 20,1981. That order provided, however, that it would be vacated if Anish filed an answer to the amended complaint within fifteen days. It is undisputed that Anish received notice of the entry of that order.

Nonetheless, relying upon Kaiser’s advice, Anish failed to respond. Almost one year later, the plaintiff moved for entry of a final judgment on the default. Anish’s motion to set aside the default, filed on June 1, 1982, was denied and a partial final judgment determining liability in favor of the plaintiff was granted. This interlocutory appeal was filed pursuant to Florida Rule of Appellate Procedure 9.130(a)(8)(C)(iv).

The trial court is vested with broad discretionary power in making a determination of whether or not the facts constitute excusable neglect to justify vacating a default. Doctor's Hospital of Hollywood v. Madison, 415 So. 2d 84 (Fla. 4th DCA), pet. for rev. denied, 422 So. 2d 842 (Fla.1982). In order to reverse a court’s ruling, there must be a showing of a gross abuse of discretion. Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978). Under the facts presented, we cannot say that the trial court abused its discretion.

While the defendant attempts to focus our attention on the confusion created by the change in attorney and his reliance on a codefendant’s statement that the bankruptcy proceeding stayed the action against all defendants, we view the critical point to be Anish’s failure to comply with the court’s order of May 20, 1981. It is undisputed that Anish received a copy of this order which clearly informed him that the default would be vacated if a response was filed within fifteen days. This order clarified any confusion which may have been created by Kaiser’s advice. Accordingly, we reject the defendant’s claim of excusable neglect.

Affirmed.


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Citator

Cited By

  • Sami Behar v. Jefferson Nat'l Bank AT Sunny Isles, 478 So. 2d 385 (Fla. 3d DCA 1985)
    …PER CURIAM. Finding no gross abuse of discretion in the trial court’s refusal to set aside the default, we affirm. Anish v. Topiwala, 430 So. 2d 990 (Fla. 3d DCA 1983). Affirmed.…
  • Eleusis U.S.A., Inc. v. Metro. Life Ins. Co., 672 So. 2d 888 (Fla. 3d DCA 1996)
    …PER CURIAM. Affirmed. Anish v. Topiwala, 430 So. 2d 990 (Fla. 3d DCA 1983).…
  • Hanrahan v. Hillard, 459 So. 2d 1166 (Fla. 3d DCA 1984)
    …1972), and the parties’ stipulation that meritorious defenses and due diligence had also been demonstrated, the order denying the motion to vacate the default and default judgment entered below was a gross abuse of discretion, see Anish v. Topiwala, 430 So. 2d 990 [*1167] (Fla. 3d DCA 1983); B.C. Builders Supply Co. v. Maldonado, supra, and is consequently reversed.…

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