CHERNOFF DIAMOND & CO., L L C
v.
GALLIN ASSOCIATES, INC., D/B/A GALLIN ASSOC.
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A defendant fails to demonstrate excusable neglect required to set aside a final default judgment when the defendant's president received the complaint, placed it in a drawer, went on vacation, and simply forgot about the lawsuit.
[1] A default will not be set aside where the defaulted party or their attorney intentionally ignored the necessity to take appropriate action.
[2] A default will not be set aside where the conduct of the defaulted party or their attorney can reasonably be characterized as partaking of gross negligence or as constitu…
Previewing 2 of 5 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“a default will not be set aside where the defaulted party or his attorney (1) simply forgot or (2) intentionally ignored the necessity to take appropriate action; that is to say, where the conduct could reasonably be characterized as partaking of gross negligence or as constituting a willful and intentional refusal to act.”
The court cited this standard from Bethesda Memorial Hospital to explain why Gallin's conduct did not constitute excusable neglect.
Chernoff Diamond sued Gallin Associates. Gallin's president, Lawrence Gallin, was served with the complaint but placed it in a drawer, left for vacati…
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CHERNOFF DIAMOND & CO., LLC, ) ) Appellant, ) ) v. ) Case No. 2D18-1891 ) GALLIN ASSOCIATES, INC., d/b/a ) GALLIN ASSOCIATES, ) ) Appellee. ) )
Opinion filed November 14, 2018.
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; Jack R. St. Arnold, Judge.
Christopher L. DeCort of Johnson & Cassidy, P.A., Tampa, for Appellant.
Sheila Skellie of the Law Office of David J. Kurland, Largo, for Appellee.
LaROSE, Chief Judge.
Chernoff Diamond & Co., LLC, appeals the trial court's nonfinal order setting aside the final default judgment entered against Gallin Associates, Inc. We have jurisdiction, Fla. R. App. P. 9.030(b)(1)(B); Fla. R. App. P. 9.130(a)(5), and reverse.
We review the trial court's order for gross abuse of discretion. See United
Capital Funding Corp. v. Technamax, Inc., 946 So. 2d 63, 64 (Fla. 2d DCA 2006). To set aside the final default judgment, Gallin had to show: "(1) that the failure to file a responsive pleading was the result of excusable neglect; (2) that it has a meritorious defense; and (3) that it acted with due diligence in seeking relief from the default." See
Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300, 301 (Fla. 2d DCA
2004) (citing Goodwin v. Goodwin, 559 So. 2d 109 (Fla. 2d DCA 1990)).
Gallin failed to prove excusable neglect. The record demonstrates that
Gallin's president, Lawrence Gallin, was served with the complaint and knew he had to respond. Yet, he put the complaint and summons in a drawer, left for vacation, and forgot about the lawsuit until he received notice of the entry of a final judgment.
We are constrained to reverse and remand for the trial court to reinstate the final default judgment. See Bethesda Mem'l Hosp., Inc. v. Laska, 977 So. 2d 804,
807 (Fla. 4th DCA 2008) ("[A] default will not be set aside where the defaulted party or his attorney (1) simply forgot or (2) intentionally ignored the necessity to take appropriate action; that is to say, where the conduct could reasonably be characterized as partaking of gross negligence or as constituting a willful and intentional refusal to act." (quoting Jeyanandarajan v. Freedman, 863 So. 2d 432, 433-34 (Fla. 4th DCA
2003))); see, e.g., Orlando Partners, Ltd. v. Classic Tour Lines, 492 So. 2d 1117, 1117 (Fla. 3d DCA 1986) (holding there was no excusable neglect where wife stated she told her husband about receipt of summons but forgot to tell him about hearing on motion for entry of default and husband did not recall knowledge of summons).
Reversed and remanded.
SILBERMAN and ATKINSON, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thigpen v. United Parcel Servs., Inc., 990 So. 2d 639 (Fla. 4th DCA 2008)…difier clear? How would an abuse of discretion truly exist but not be clear? Is this another instance where the court is communicating soto voce to appellate judges a policy it doesn't want to spell out? See e.g. Bethesda Mem’l Hosp., Inc. v. Laska, 977 So. 2d 804, 806 (Fla. 4th DCA 2008) ("We suppose that the Florida Supreme Court has prescribed this most forbearing standard of review — an abuse of discretion that is not merely commonplace but partakes of something ineffably greater — because the reasons for…
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M.W. v. SPCP Grp. V, LLC, 163 So. 3d 518 (Fla. 3d DCA 2015)…vacating a default as [we] can possibly be, upsetting it very rarely and only with undeniable provocation.” NIV-CAB, Inc. v. Accord Ins. Network of Am., Inc., 24 So. 3d 1204, 1204-05 (Fla. 4th DCA 2009) (quoting Bethesda Mem’l Hosp., Inc. v. Laska, 977 So. 2d 804, 806 (Fla. 4th DCA 2008)). When this case is examined in light of the governing standard of review, it is clear the trial court did not commit a reversible error in setting aside the default. B. Ex Parte Defaults Are Prohibited Where a Party Knows…
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Chernoff Diamond & Co. v. Gallin Assocs., Inc., 258 So. 3d 563 (Fla. 2d DCA 2018)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300 (Fla. 2d DCA 2004)
- Goodwin v. Goodwin, 559 So. 2d 109 (Fla. 2d DCA 1990)
- Sundarampillai Jeyanandarajan v. Freedman, 863 So. 2d 432 (Fla. 4th DCA 2003)
- Orlando P'rs, Ltd. v. Classic Tour Lines, 492 So. 2d 1117 (Fla. 3d DCA 1986)
- Chernoff Diamond & Co. v. Gallin Assocs., Inc., 258 So. 3d 563 (Fla. 2d DCA 2018)
- Bethesda Mem'l Hosp., Inc. v. Judie Laska, 977 So. 2d 804 (Fla. 4th DCA 2008)
- United Cap. Funding Corp. v. Technamax, Inc., 946 So. 2d 63 (Fla. 2d DCA 2006)