RAYMOND E. ROGOZINSKI AND HELEN DEANN DAVIS, APPELLANTS,
v.
JOHN SULLIVAN, APPELLEE
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The appellate court reversed the trial court's denial of a motion to set aside a final default judgment, finding that the defendants' confusion regarding counsel and the relationship between their law firms constituted excusable neglect.
The court held that the trial court erred in denying the motion to set aside the default judgment because the defendants' confusion regarding their counsel, stemming from the intertwined nature of their legal representation in related cases, constituted excusable neglect.
[1] A default judgment may be set aside when defendants demonstrate excusable neglect and due diligence in seeking to vacate the judgment, especially when there is confusion…
[2] A reasonable doubt as to the propriety of a default judgment warrants vacating the judgment in favor of a trial on the merits.
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Join FLexlaw to unlock all legal intelligenceThe defendants appealed an order denying their motion to set aside a final default judgment entered against them in a contract dispute. The defendants…
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ALTENBERND, Judge.
The defendants, Raymond E. Rogozinski and Helen Deann Davis, appeal an order denying their motion to set aside a final default judgment in favor of the plaintiff, John Sullivan. We reverse.
Mr. Sullivan possessed a license, issued by the City of Sarasota, to run a restaurant concession at a municipal golf course. He sold this license to Mr. Rogozinski in 1989 under a contract requiring installment payments. Mr. Rogozinski stopped making payments under the contract, and Mr. Sullivan sued him in March 1991. Mr. Rogozinski retained an attorney, who filed an answer and counterclaim in April 1991.
Upon discovering that Mr. Rogozinski and Ms. Davis had entered into a partnership with respect to the restaurant, Mr. Sullivan obtained an order on August 26, 1991, allowing him to amend his complaint to add Ms. Davis as a defendant. The allegations in the amended complaint concerning Mr. Rogozin-ski are quite similar to those in the initial complaint. Neither defendant filed an answer to the amended complaint. Mr. Sullivan obtained a clerk’s default against Ms. Davis on October 1, 1991. He obtained a judicial default against Mr. Rogozinski and a judgment against both defendants on November 4, 1991. The defendants moved to vacate the final judgment and set aside the defaults on December 11, 1991. The trial court denied the defendants’ motion to set aside the final default judgment.
The evidence presented at the hearing on the motion to set aside the default judgment established that the dispute concerning the restaurant concession had resulted in two lawsuits. Mr. Rogozinski and Ms. Davis had sued the City of Sarasota concerning efforts to terminate the license agreement. They were represented by Alan R. Dakan, P.A., in the action against the City. In the beginning, they were represented by Teresa Harrison, P.A., in this action. The relationship between Dakan, P.A., and Harrison, P.A., is significant. These two professional associations are members of a partnership of professional associations. The partnership is known as Branning, Breslau, Harrison & Dakan. It has one address and telephone number and legal stationery that displays the partnership name as the name of the law firm. The lawyers and the parties in these two cases had coordinated their efforts. Although the lawyers’ appearances in the court files did not use the name of the partnership, at least for some purposes, one firm was representing Mr. Rogozinski and Ms. Davis in both lawsuits. See R. Regulating Fla.Bar 4-1.10.
Harrison, P.A., withdrew as Mr. Rogozin-ski’s attorney in this case on August 7, 1991, prior to the filing of the amended complaint. At that time, Mr. Dakan had discussions about possibly representing the defendants in the Sullivan case. He was willing to do so, but it was his understanding that they would contact him to make final arrangements for that representation.
Both Ms. Davis and Mr. Rogozinski recalled discussions with Mr. Dakan concerning his representation of them in both cases. Ms. Davis believed that Mr. Dakan had assumed responsibilities for both eases when Ms. Harrison withdrew. She assumed that Mr. Dakan was receiving copies of all correspondence and pleadings in both cases, and that he was handling those matters.
Ms. Davis opened all incoming mail for both defendants. Mr. Rogozinski knew that Ms. Harrison had answered the original complaint on his behalf and did not believe it was necessary to file an answer to the amended complaint.1 Like Ms. Davis, he assumed that Mr. Dakan was taking care of both lawsuits.
When Ms. Davis received her default, she mailed a copy to the law firm. When the defendants received the final judgment, they forwarded it to the law firm. They first realized that Mr. Dakan was not representing them when they received his letter of November 7,1991, advising them of this fact. The defendants arranged a meeting with Mr. Dakan a few days thereafter. The trial court erred in denying the defendants’ motions to set aside the default judgment. As in our recent decision in Khubani v. Mikulic, 620 So. 2d 800 (Fla. 2d DCA1993), both defendants have “established at least a reasonable doubt as to the propriety of a default in this case,” and “the trial court abused its discretion in failing to resolve these doubts in favor of a trial on the merits.” Id. at 801.
We agree with the trial court’s determination that Mr. Dakan, as the defendants’ counsel, exercised due diligence in timely filing the motion to set aside default. See Conidaris v. Credit Alliance Corp., 558 So. 2d 523 (Fla. 5th DCA1990). We disagree with its determination that the defendants themselves failed to exercise due diligence. In light of the confusion concerning the scope of Mr. Dakan’s representation and the speed with which the defendants arranged for counsel to move to vacate the default judgment, they have demonstrated excusable neglect and due diligence. See North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla.1962); B.C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA1981); Goodwin v. Goodwin, 559 So. 2d 109 (Fla. 2d DCA1990); Khubani, 620 So. 2d at 801-802. The motion to set aside the default judgment and the proposed answer to the amended complaint adequately established a meritorious defense.
Accordingly, the trial court’s order denying the motions to set aside the default judgment is reversed, and the cause is remanded for further proceedings.
FRANK, C.J., and CAMPBELL, J., concur. . Prior to 1980, his assumption would have been correct. See Fla.R.Civ.P. 1.190 committee notes; Bonded Rental Agency, Inc. v. Conner, 359 So. 2d 926 (Fla. 3d DCA1978).
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RAY v. Thomson-Kernaghan & Co. Ltd., 761 So. 2d 1197 (Fla. 4th DCA 2000)…way Am. Bank of Fla. v. Lucky Jet Corp., 720 So. 2d 1141 (Fla. 4th DCA 1998)(bank established reasonable explanation for its failure to file an answer due to upheaval in the corporation brought about by a change of officers); Rogozinski v. Sullivan, 624 So. 2d 822 (Fla. 2d DCA 1993)(defendants established at least a reasonable doubt as to the propriety of a default where there was confusion concerning the scope of counsel’s representation and defendants speedily arranged for counsel to move to vacate the defa…
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Yeiser v. Lone Pine Mobile Home Park, Inc., 629 So. 2d 299 (Fla. 2d DCA 1993)…f the foreclosure action was not known by them in time to file any request for abatement and consolidation. That confusion constituted excusable neglect justifying a setting aside of the default in the foreclosure action. See Rogozinski v. Sullivan, 624 So. 2d 822 (Fla. 2d DCA 1993). We reverse with directions that this action be consolidated with the appellants’ suit seeking rescission of the contract of sale which produced the mortgage sought to be foreclosed in this action. It is simply incongruous to all…
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Sunstate Courier, Inc. v. Byron, 629 So. 2d 1095 (Fla. 2d DCA 1994)…DCA 1990). Because of the confusion caused by the pendency of both cases involving related parties and subject matter, the failure to timely respond constituted excusable neglect which justified setting aside the default. See Rogozinski v. Sullivan, 624 So. 2d 822 (Fla. 2d DCA 1993); Okeechobee Imports, Inc. v. American Sav. & Loan Ass’n, 558 So. 2d 506 (Fla. 3d DCA 1990). Accordingly, we reverse the order denying the motion to set aside the default and remand this cause for further proceedings. FRANK, C.J.…
Authorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)
- Goodwin v. Goodwin, 559 So. 2d 109 (Fla. 2d DCA 1990)
- Khubani v. Mikulic, 620 So. 2d 800 (Fla. 2d DCA 1993)
- Capua v. Ragone, 359 So. 2d 926 (Fla. 3d DCA 1978)
- Conidaris v. Credit Alliance Corp., 558 So. 2d 523 (Fla. 5th DCA 1990)