CALIFORNIA CLUB REALTY, INC., APPELLANT,
v.
PHYLLIS LUCCA, APPELLEE
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California Club Realty appealed the trial court's denial of its motion to set aside a default judgment, arguing excusable neglect, a meritorious defense, and due diligence. The appellate court affirmed, finding the defendant intentionally failed to respond to the complaint rather than acting negligently, thereby failing to establish excusable neglect.
The trial court did not abuse its discretion in denying the motion to set aside the default judgment. The court properly found that the defendant intentionally, not negligently, failed to respond to the complaint, thereby failing to establish excusable neglect, which is required to vacate a default judgment.
[1] A trial court is entitled to pass upon the credibility of witnesses and the weight to be given their testimony and affidavits.
[2] A party's intentional failure to respond to a complaint, rather than excusable neglect, will not support a motion to set aside a default judgment.
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Establishes the appellate standard of review for credibility determinations—the trial court's findings are not overturned unless clearly erroneous.
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Join FLexlaw to unlock all legal intelligencePlaintiff Phyllis Lucca filed a complaint against defendant California Club Realty, Inc. A representative from the defendant telephoned plaintiff's co…
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PER CURIAM.
This is an appeal by the defendant California Club Realty, Inc. from an order denying its motion under Fla.R.Civ.P. 1.540 to set aside an adverse final default judgment. The defendant claims that the trial court grossly abused its discretion in denying its motion because (a) its failure to respond to the plaintiff Phyllis Lucca’s complaint was the result of excusable neglect, (b) it had a meritorious defense to the instant action, and (c) it acted with due diligence in moving to set aside the final default judgment. We reject this contention and affirm based on the following briefly stated legal analysis.
First, the trial court was entitled to credit the testimony and affidavit of the former counsel for the plaintiff that a rep resentative from the defendant telephoned said counsel upon receipt of the instant complaint and, in effect, told counsel that the defendant did not intend to respond to the complaint because it was not liable to the plaintiff. Although the defendant objected to counsel’s testimony as hearsay, it made no similar objection to the above affidavit of counsel; moreover, the defendant makes no contention on appeal that the above testimony and affidavit were improperly admitted below. Instead, the defendant urges that this testimony and affidavit were not worthy of belief for a variety of reasons. We do not pause to assess the validity of any of these reasons because it was for the trial court, not this court, to pass upon the credibility of this witness. Shaw v. Shaw, 334 So. 2d 13, 16 (Fla.1976); Marrone v. Miami Nat’l Bank, 507 So. 2d 652, 653 (Fla. 3d DCA 1987); Hernandez v. Leiva, 391 So. 2d 292, 294 (Fla. 3d DCA 1980).
Second, given the above-stated testimony and affidavit which the trial court was entitled to credit, it follows that the trial court could have properly found that the defendant intentionally, not negligently, failed to respond to the instant complaint and that, accordingly, no excusable neglect on the part of the defendant had been established. This being so, it follows that the trial court did not abuse its discretion in denying the defendant’s motion to vacate the final default judgment. See Rhines v. Rhines, 483 So. 2d 4, 6 (Fla. 2d DCA 1985), rev. denied, 488 So. 2d 68 (Fla.1986); Arranco Shoes By Carmen, Inc. v. Calzados Milady, S.L., 422 So. 2d 341, 342 (Fla. 3d DCA 1982); Austin Burke, Inc. v. Vigilant Ins. Co., 179 So. 2d 600, 602 (Fla. 3d DCA 1965).
Affirmed.
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Am. Travel, Inc. v. Praxedes Vazquez, 519 So. 2d 82 (Fla. 3d DCA 1988)…PER CURIAM. Affirmed. Herrick v. Southeast Bank, N.A., 512 So. 2d 1029, 1030 n. 3 (Fla. 3d DCA 1987). See also California Club Realty, Inc. v. Lucca, 517 So. 2d 72 (Fla. 3d DCA 1987).…
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Manreb Int'l Realty, N.V. v. Imperial Roof Truss, Inc., 521 So. 2d 310 (Fla. 3d DCA 1988)…orized representatives of the defendant corporation, which cannot provide the basis of granting the defendant relief, see Herrick v. Southeast Bank, N.A., 512 So. 2d 1029, 1030 n. 3 (Fla. 3d DCA 1987); see also California Club Realty, Inc. v. Lucca, 517 So. 2d 72, 73 (Fla. 3d DCA 1987), and (b) the denial of the appellant’s motion for continuance of the Rule 1.540 hearing was not an abuse of discretion. In re Gregory, 313 So. 2d 735 (Fla.1975). Affirmed.…
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Authorities Cited
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- Hernandez v. Leiva, 391 So. 2d 292 (Fla. 3d DCA 1980)
- Carmine Marrone v. Miami Nat'l Bank, 507 So. 2d 652 (Fla. 3d DCA 1987)
- Kirkland v. Fla. Dep't of Corr., 2006 WL 3755195 (N.D. Fla. 2024)
- Rhines v. Rhines, 483 So. 2d 4 (Fla. 2d DCA 1985)
- Austin Burke, Inc. v. Vigilant Ins. Co., 179 So. 2d 600 (Fla. 3d DCA 1965)
- Maximo Bravo and Yero Cilega v. State, 422 So. 2d 341 (Fla. 3d DCA 1982)
- Arranco Shoes BY Carmen, Inc. v. Calzados Milady, 422 So. 2d 341 (Fla. 3d DCA 1982)