DIVERSIFIED DEVELOPMENT GROUP, INC., A FLORIDA CORPORATION; AND GORDON J. SIMPSON, APPELLANTS,
v.
DONALD L. BOWERS, APPELLEE

Fla. 2d DCA | 1983-06-29
No. 82-1463
RYDER and LEHAN, JJ., concur.
433 So. 2d 678 Florida District Court of Appeal, Second District (1983)

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Synopsis

Diversified Development Group and its vice-president Gordon Simpson appealed the denial of their motion to vacate a default judgment entered by the trial court. The appellate court affirmed the denial, holding that the trial court did not abuse its discretion given the conflicting evidence about an extension agreement and appellants' failure to act diligently.


Holding

The court held that the trial court did not abuse its discretion in denying the motion to vacate. Given the conflicting testimony about the extension agreement between counsel and appellants' failure to act diligently in retaining new counsel and responding to the complaint, the denial was proper.


Headnotes

[1] A trial court is vested with broad discretion in adjudicating a motion to vacate a default.

[2] A party challenging the denial of a motion to vacate a default must demonstrate that the trial court grossly abused its discretion.

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Key Quotes

“It is well recognized that a trial court is vested with broad discretion in adjudicating a motion to vacate a default. Hence, it is incumbent upon the challenging party to demonstrate that the court grossly abused its discretion in ruling on such a motion.”

Establishes the standard of review for motions to vacate defaults—trial courts have broad discretion and appellants must show gross abuse.

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Facts & Procedural History

Appellants' attorney, Fred Gillette, informed Simpson five days before the answer deadline that he had a conflict of interest and could not continue r…

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Opinion of the Court
HOBSON, Acting Chief Judge.

HOBSON, Acting Chief Judge.

Diversified Development Group, Inc., a Florida corporation, and Gordon Simpson, vice-president of the corporation, defendants below, appeal a nonfinal order in favor of Donald Bowers, plaintiff below, which denied their motion to set aside a default.1 We affirm.

Five days before the expiration of appellants’ twenty-day period in which to file an answer to appellee’s complaint, appellants’ attorney, Fred Gillette, informed appellant Simpson that he would be unable to represent appellants in the action due to a potential conflict of interest. He advised appellant Simpson to secure other counsel as quickly as possible and to file a responsive pleading. He also gave appellant names of several attorneys, suggesting that he contact them. Gillette then engaged in a telephone conversation with appellee’s attorney, Dennis Gold, about his inability to represent appellants in the action. He requested of Gold an extension of time since appellants would need time to retain other counsel before filing an answer. Although Gold agreed to an extension, a discrepancy exists in the testimony of Gold and Gillette regarding the length of the extension. Gillette testified that there was not any agreement regarding a specific period of time; it was “open-ended.” However, he also stated that Gold told him that the extension was to be “within limits.” Gold testified that he indicated to Gillette that he would allow appellants an extension of one week.

Twenty-five days after the expiration of the original deadline in which to file an answer, the clerk entered a default in appellee’s favor. Almost three weeks later, appellants attempted to file an answer pro se. The clerk, however, refused to accept it on the basis that the default had been entered. Five months later, and three weeks before a scheduled trial on the issue of damages, appellants secured other counsel. They then filed an answer and the motion to vacate. The court denied the motion after conducting a hearing.

It is well recognized that a trial court is vested with broad discretion in adjudicating a motion to vacate a default. Hence, it is incumbent upon the challenging party to demonstrate that the court grossly abused its discretion in ruling on such a motion. See North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 852 (Fla.1962); Garcia Insurance Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977); Consolidated Aluminum Corp. v. Weinroth, 422 So. 2d 330 (Fla. 5th DCA 1982). We hold that in light of the testimony of Gillette and Gold, and in view of appellants’ failure to act more diligently, the court’s denial of the motion to vacate did not constitute reversible error. Accordingly, the order is affirmed.

AFFIRMED.

RYDER and LEHAN, JJ., concur. . An order denying a motion to vacate a default is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). Doctor’s Hospital of Hollywood v. Madison, 411 So. 2d 190 (Fla.1982).


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