DONALD HANFT, M.D. AND DONALD HANFT, M.D., P.A., APPELLANTS,
v.
SUZANNE CHURCH AND JOHN CHURCH, APPELLEES
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Dr. Hanft appeals an order denying his motion to set aside a default judgment in a medical malpractice case. The court reversed, holding that excusable neglect was shown where the doctor mistook the complaint for a routine records subpoena while attending patients on his last day before a pre-planned medical conference in Europe, and promptly retained counsel and moved to vacate the default upon his return.
Excusable neglect was shown, and the default should be set aside. Florida's public policy strongly favors adjudication of lawsuits on the merits, and when there is any reasonable doubt about whether to vacate a default, it should be resolved in favor of allowing a trial on the merits.
[1] A trial court abuses its discretion by refusing to set aside a default judgment when the defendant demonstrates meritorious defenses and establishes excusable neglect for…
[2] Florida law favors trials on the merits, and any reasonable doubt regarding vacating a default should be resolved in favor of granting the application.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Florida's longstanding public policy favors adjudication of lawsuits on the merits.”
Establishes the foundational public policy principle that guides the court's analysis of whether to set aside defaults.
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Join FLexlaw to unlock all legal intelligenceDr. Hanft was served with a medical malpractice complaint on July 18, 1995, the day before departing for a previously scheduled medical conference and…
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PER CURIAM.
Donald Hanft, M.D. and Donald Hanft, M.D., P.A. appeal an order denying their motion to set aside a default. We reverse.
Dr. Hanft was served with a medical malpractice complaint on July 18, 1995, the day before he was to depart for a previously scheduled medical conference and vacation in Europe. According to the doctor’s affidavit, he had delivered two babies on the evening of July 17. On July 18 he was served with process in the midst of attending patients on his last work day prior to departure for the conference. The affidavit states that the doctor mistook the papers for a records subpoena, which the office receives regularly, and did not realize that the papers instead were a lawsuit against him.
Upon his return to the office on the twenty-first day after service, the doctor read the papers, realized that it was a lawsuit, and immediately contacted counsel. Counsel in turn immediately called plaintiffs’ counsel by telephone on the twenty-first and twenty-second days after service. In the meantime, plaintiffs’ counsel had mailed a motion for default ex parte to the clerk on the twentieth day. Plaintiffs refused to grant counsel the courtesy of an extension of time, and refused to recall the motion for default. On the twenty-second day the clerk entered the default. Defense counsel filed a verified motion to vacate default on the twenty-second day after service of process.
There is no question that the doctor acted with due diligence in moving to set aside the default, and that the papers he filed demonstrate the existence of a meritorious defense. The trial court ruled against the doctor, however, on the basis that excusable neglect had not been shown. We disagree.
Florida’s longstanding public policy favors adjudication of lawsuits on the merits. See North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 853 (Fla.1962). Thus, “ ‘ * * * if there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case_’” Id. (citations omitted).
We conclude that excusable neglect was shown in this ease. See Okeechobee Imports, Inc. v. American Savings and Loan Assoc. of Florida, 558 So. 2d 506 (Fla. 3d DCA 1990); Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987). Accordingly the order under review is reversed and the cause remanded with directions to vacate the default.
Reversed and remanded.
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Clemente Almeida and Juana Almeida v. FMC Corp., 740 So. 2d 557 (Fla. 3d DCA 1999)…. The defendants graciously conceded at oral argument before this court that they did not suffer any prejudice from the violation of Rule 1.070®. . See Royal Caribbean Cruises, Ltd. v. Traveler, 699 So. 2d 847 (Fla. 3d DCA 1997); Hanft v. Church, 671 So. 2d 249, 250 (Fla. 3d DCA 1996); Bellomio v. Malinski, 624 So. 2d 369, 370 (Fla. 3d DCA 1993). . It now reads: "If service of the initial process ,and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading, the…
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West v. Michele Pommier Models, Inc., 681 So. 2d 930 (Fla. 3d DCA 1996)…, Sanchez v. Horrell, 660 So. 2d 366, 367 (Fla. 4th DCA 1995); Inter-Atlantic Ins. Servs., Inc. v. Hernandez, 632 So. 2d 1069 (Fla. 3d DCA 1994). Given the well established preference in the law for resolving disputes on the merits, Hanft v. Church, 671 So. 2d 249, 250 (Fla. 3d DCA 1996) (citing North Shore Hosp., Inc. v. Barber, 143 So. 2d 849, 853 (Fla.1962)), we conclude that the trial court grossly abused its discretion when it declined to set aside the default and default judgment and denied the motion f…
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Adele Thomas v. Feinberg, 745 So. 2d 500 (Fla. 3d DCA 1999)…s correct. Florida has a long-standing policy in favor of trials on the merits. See North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 853 (Fla.1962); West v. Michele Pommier Models, Inc., 681 So. 2d 930, 931 (Fla. 3d DCA 1996); Hanft v. Church, 671 So. 2d 249, 250 (Fla. 3d DCA 1996); Venero v. Balbuena, 652 So. 2d 1271, 1272 (Fla. 3d DCA 1995). For that reason Tubero requires a clear showing of deliberate, intentional misconduct. Indeed, in some cases the courts have taken note of whether the conduct in…
Authorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Carter v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987)
- Okeechobee Imports, Inc. v. Am. Sav. & Loan Ass'n OF Fla., 558 So. 2d 506 (Fla. 3d DCA 1990)