JANE GERTRUDE ENGLISH, APPELLANT,
v.
MARY B. HECHT AND THE NORTH FORTY CORP., APPELLEES
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Plaintiff appeals the dismissal of her equity suit for failure to timely file an amended complaint due to her attorney's miscalculation of the deadline. The court reverses, finding the trial court abused its discretion in denying relief under the mistake/excusable neglect standard when no trial on the merits had occurred.
The trial court abused its discretion in denying the motion to set aside the judgment. Where a party has not had a trial on the merits, judicial discretion should be exercised in favor of opening judgments in cases of reasonable doubt, and the attorney's failure to file timely constituted mistake, inadvertence, or excusable neglect warranting relief.
“It is the well established rule that the opening of judgments is a matter of judicial discretion and in case of reasonable doubt, where there has been no trial on the merits, this discretion is exercised in favor of granting the application so as to permit a determination of the controversy upon the merits.”
Establishes the governing standard for relief from judgment when no trial on the merits has occurred
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Join FLexlaw to unlock all legal intelligencePlaintiff filed a suit in equity seeking damages, accounting, and injunction. The trial court determined the complaint failed to state a cause of acti…
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Plaintiff appeals from a final judgment dismissing her cause of action for failure to file an amended complaint within the time allowed by order of the court and an order denying plaintiff’s motions to set aside and vacate the final judgment.
Plaintiff commenced her suit in equity for damages, accounting and injunction. The trial court found that the complaint failed to state a cause of action for equitable relief and that any cause of action the plaintiff may have is at law. The court ordered that the cause be transferred to the law side of the court and that the plaintiff be granted twenty days from November 24, 1965 within which to amend her complaint to state a cause of action, if any.
Upon failure of the plaintiff to file an amended complaint within the twenty days allowed, the court, on December 17, 1965, entered a final judgment dismissing the cause. On December 18, 1965 the day following entry of the judgment, plaintiff’s attorney filed a motion to vacate or set aside final judgment and attached thereto amendments to plaintiff’s complaint. The motion set forth, in essence: that on the 24th of November, 1965 the court granted by verbal order defendants’ motion to dismiss with leave to amend; that on November 29, 1965 a written order was entered which (1) granted the motion, (2) transferred the cause to the law side of the court, (3) granted plaintiff twenty days from November 24, within which to amend; that plaintiff’s counsel inadvertently and by oversight docketed upon his record the 20th *367day of December, 1965 as the period of time within which to file an amendment to the original complaint not realizing that the date from which the twenty days was to he calculated was not the same as the date of the order. The court denied the motion to set aside or vacate the judgment.
It is counsel’s contention that he inadvertently miscalculated the time period within which the amended complaint could be filed and that his miscalculation was not gross negligence but only an inadvertent mistake from which plaintiff would be entitled to relief under Rule 1.38(b) Florida Rules of Civil Procedure, 30 F.S.A. This rule provides:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect * *
It is the well established rule that the opening of judgments is a matter of judicial discretion and in case of reasonable doubt, where there has been no trial on the merits, this discretion is exercised in favor of granting the application so as to permit a determination of the controversy upon the merits.1
We think that the attorney’s failure to file the amended complaint within the time specified in the order may be fairly described as being due to mistake, inadvertance or excusable neglect. We have therefore concluded that the action of the trial court in denying plaintiff’s motion to set aside the judgment of dismissal was such an abuse of discretion as to call for reversal.
Appellant raises other points which we have considered and found to be without merit.
The judgment appealed is reversed.
Reversed.
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Travelers Ins. Co. v. Daisey Q. Bryson and Salvatore DeLuca, 341 So. 2d 1013 (Fla. 4th DCA 1977)…e feel the trial judge abused his discretion in not vacating the default. The [*1015] answer was filed on the date the default hearing was held. Counsel’s absence from the hearing was a mistake, or inadvertent or excusable neglect. English v. Hecht, 189 So. 2d 366 (Fla. 3d DCA 1966). The purpose of Rule 1.500, Fla.R.Civ.P., is to speed the cause along and prevent dilatory tactics. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). As we said in Clark v. Roberto’s, Inc., 320 So. 2d 870 (Fla. 4th…
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Hall v. Eleanore Florence Byington & Rinker Materials Corp., 421 So. 2d 817 (Fla. 4th DCA 1982)…an interpleader complaint to be answered on a later date. A lawyer’s failure to note a date properly on his calendar has been recognized as excusable neglect. Travelers Insurance Co. v. Bryson, 341 So. 2d 1013 (Fla. 4th DCA 1977); English v. Hecht, 189 So. 2d 366 (Fla. 3d DCA 1966). However, there is neither a sworn motion in the record nor any testimony of the lawyer in this case attesting to that fact. The trial judge mistakenly believed the motion to be sworn, but on close examination of the lawyer’s oath…
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Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So. 2d 281 (Fla. 4th DCA 1980)…supra, the court held that the trial judge abused his discretion in not vacating a default where counsel was ab [*284] sent from the hearing on the motion for default because the date had not been properly noted on his calendar. In English v. Hecht, 189 So. 2d 366 (Fla. 3d DCA 1966), the court ruled that an attorney’s failure to file an amended complaint within a specified time was due to excusable neglect because the attorney miscalculated the time period and thus mistakenly docketed the matter on his calend…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Coggin v. Barfield, 150 Fla. 551 (Fla. 1942)
- Fla. Inv. Enters., Inc. v. The Ky. Co., Inc., 160 So. 2d 733 (Fla. 1st DCA 1964)
- Etienne v. Irvin, 45 Fla. L. Weekly D2032 (Fla. 3d DCA 2020)
- Evans v. Hydeman, 168 So. 2d 183 (Fla. 2d DCA 1964)
- Holiday Ranch, Inc. v. Roudabush, 171 So. 2d 558 (Fla. 2d DCA 1965)