DOUGLAS P. BADERTSCHER, APPELLANT,
v.
RESORT INTERIORS, APPELLEE
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The court held that a party's passive reliance on an attorney who never entered the case does not constitute excusable neglect to set aside a default judgment.
Badertscher hired an attorney and provided materials but the attorney never entered the case due to financial disagreements, and Badertscher was aware…
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MILLS, Judge.
In this appeal, Badertscher asserts that the trial court abused its discretion in refusing to set aside a default judgment entered against him. We disagree and affirm.
It is axiomatic that Florida jurisprudence favors liberality in the area of setting aside defaults in order that parties may have their controversies decided on the merits. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). However, “a showing of gross abuse of the trial court’s discretion is necessary on appeal to justify reversal of the lower court’s ruling on a motion to vacate.” 143 So. 2d at 852 (emphasis deleted).
In the present case, Badertscher hired an attorney, provided the attorney with materials to act on the case, and then passively relied on the attorney to represent his interests. He contends this constitutes excusable neglect sufficient to satisfy Fla.R. Civ.P. 1.540(b). The trial court disagreed relying on the fact that the attorney contacted by Badertscher never entered the case as the attorney of record due to an apparent dissatisfaction with the parties’ financial arrangement, and Badertscher was aware of this situation.
Whether Badertscher’s conduct constitutes excusable neglect presents a difficult judgment call. However, it is by virtue of the fact that this case does present a judgment call and that is what generally describes discretion, that we are reluctant to disturb the trial court’s ruling.
To conclude, we find no gross abuse of discretion and affirm the denial of Bad-ertscher’s motion to vacate the default judgment entered against him.
BOOTH, C.J., and WENTWORTH, J., concur.
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Citator
Cited By
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Trupin v. Wallquist, 605 So. 2d 1295 (Fla. 4th DCA 1992)…e parties and witnesses which present conflicting facts. On that record the trial judge was apparently persuaded by appellee’s presentation and we find no gross abuse of discretion, which, of course, is the standard. Badertscher v. Resort Interiors, 505 So. 2d 4 (Fla. 1st DCA 1986). Accordingly, the order appealed from is affirmed. WARNER, J., and OWEN, WILLIAM C., JR., Senior Judge, concur.…
Authorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)