IDA PIOANETTI ORTIZ, APPELLANT,
v.
NICHOLAS NICOLAIDES AND SOFIA NICOLAIDES, HIS WIFE, AND UNITED STATES FIDELITY & GUARANTY COMPANY, APPELLEES
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The Florida District Court of Appeal reversed a final judgment based on default judgments entered against a defendant, finding that the trial court erred in not allowing the defendant's original answer to stand when the complaint was amended and in entering a default for the defendant's failure to appear at trial.
The trial court erred in entering a default on Sofia Nicolaides' amended claim because the original answer should have been permitted to stand over, as the amended complaint contained the same allegations relative to the cause of action as the original complaint. The trial court also abused its discretion in entering a default against the defendant for failure to appear at trial, as it had the right to proceed but should have exercised that discretion more carefully.
“As the amended complaint contained the same allegations relative to the alleged cause of action as the original complaint, the original answer should have been permitted to stand over.”
Establishes that an original answer stands over to an amended complaint containing the same allegations
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Join FLexlaw to unlock all legal intelligenceIda Pioanetti Ortiz was sued in negligence by United States Fidelity & Guaranty Company and Nicholas E. Nicolaides arising from an accident. Ortiz fil…
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These appeals seek review of a final judgment rendered on a jury verdict in favor of the appellee, Sofia Nicolaides, for $1,000.-00 and in favor of the remaining appellees-in the sum of $18,500.00.
The principal question to be determined is whether the trial court was correct in. entering a default judgment in favor of the plaintiff-appellee, Sofia Nicolaides, upon the amended complaint in this cause wherein she was first made a party, and in not permitting the original answer of the-defendant-appellant to stand over. Further, that the trial court committed error in entering a default against the defendant as to the remaining plaintiffs-appellees at the time of trial for failure of her counsel to appear.
The initial complaint in this cause was brought by United States Fidelity & Guaranty Company and Nicholas E. Nicolaides sounding in negligence against the appellant-defendant. Answer to this *187■complaint was filed. This complaint was subsequently amended by adding a claim on behalf of the appellee, Sofia Nicolaides, arising out of the same accident. No further answer was tendered by the defendant and the trial court entered a default on Sofia’s claim because of this failure, but reserved the amount of damages to be ■determined by a jury. We find error in the entry of this default. As the amended complaint contained the same allegations relative to the alleged cause of action as the original complaint, the original answer should have been permitted to stand over. See: Rule 1.15(a), Florida Rules of Civil Procedure, 1965 Rev., 30 F.S.A. See also: Craver v. Ramagli Realty Co., Fla.App. 1959, 109 So.2d 187, Reversed on other grounds, Fla., 121 So.2d 64S.
At the time the cause came on for trial, both counsel for the plaintiffs and the defendant announced they were ready to proceed. The trial court indicated that the matter would not be reached on the date it was originally called for, but would be reached later on in the week. Counsel for the defendant indicated his availability to proceed with the trial later on in the week, and the matter duly came on for trial on Thursday, January 27, 1966, after first having been called for Monday, January 24, 1966. Upon the cause being called for trial, neither the defendant nor her counsel appeared and, at this time, the trial court entered a default against the defendant on the complaint of the plaintiffs, Nicholas Nicolaides and United States Fidelity & Guaranty Company, as to liability, leaving for the jury’s determination solely the amount of damages on both the claims of these plaintiffs and on the claim of the plaintiff, Sofia Nicolaides.
We find that the trial court abused its discretion in entering this default at the commencement of the trial. He undoubtedly had the right to proceed with the trial, which had been duly noticed, upon the failure of the defendant or her counsel to appear. See: Flournoy v. Munson Bros. Co., 51 Fla. 198, 41 So. 398; W. T. Hadlow v. Sargent, 61 Fla. 236, 54 So. 1003; American Tie & Timber Co. v. Washington, 62 Fla. 117, 57 So. 201; Wilhelm v. South Indian River Company, 98 Fla. 970, 124 So. 729. He was not required to continue the matter; and if counsel was derelict in attending to his client’s cause he would be liable to her for such. See: Weekley v. Knight, 116 Fla. 721, 156 So. 625; Solomon v. Meyer, Fla.App.1959, 116 So.2d 37; 3 Fla.Jur., Attorneys at Law, § 45.
Therefore, for the reasons stated above, the final judgment here under review is hereby reversed and the defaults upon which it was based are hereby set aside; and this cause is hereby remanded to the trial court with directions to grant the defendant a new trial on the issues made by the complaint, the complaint as amended, and the answer of the defendant, permitting further amendments if the parties should so apply within the discretion of the trial court.
Reversed and remanded, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Vines v. Doyle Eugene Vines, 357 So. 2d 243 (Fla. 2d DCA 1978)…hen a party to civil litigation fails to appear at trial, the trial judge may proceed with the trial in the absence of that party. Holt Industries, Inc. v. Airtronics International Corporation, 139 So. 2d 731 (Fla. 3d DCA 1962); Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967). While the nonappearing party faces jeopardy of substantive rights by making that choice, nonappearance of a party alone does not insult the trial judge, does not constitute a resistance of or interference with his lawful authorit…
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Belcher v. Eileen and Charles Ferrara, 511 So. 2d 1089 (Fla. 3d DCA 1987)…dmitted as true). Where a defendant with notice in a negligence action fails to appear for trial, the court, in its discretion, may proceed with the trial but may not relieve the plaintiff of its burden to prove disputed issues. Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967) (default on liability entered by court at trial where defendant, with notice, failed to appear was an abuse of discretion). Belcher contends, and it is supported by a pleading in the record, that the trial court dismissed the cou…
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Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So. 2d 424 (Fla. 3d DCA 1979)…0 So. 2d 1152 (Fla. 3d DCA 1978); Travelers Insurance Co. v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978); Graber v. Gassman, 321 So. 2d 82 (Fla. 3d DCA 1975); Byron Holding Corp. v. Cohen, 284 So. 2d 412 (Fla. 3d DCA 1968); and Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967). Accordingly, the final judgment appealed is reversed and the cause is remanded to the trial court with directions to reinstate appellant’s pleadings and allow the matter to proceed to trial. However, the trial court may impose ot…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wilhelm v. S. Indian River Co., 98 Fla. 970 (Fla. 1929)
- Mrs. Ruby Knight Weekley v. Knight, 116 Fla. 721 (Fla. 1934)
- Flournoy v. Munson Bros. Co., 51 Fla. 198 (Fla. 1906)
- Am. Tie & Timber Co. v. Washington, 62 Fla. 117 (Fla. 1911)
- Cora Lambert v. Johnson, 109 So. 2d 187 (Fla. 1st DCA 1959)
- Craver v. Ramagli Realty Co., 109 So. 2d 187 (Fla. 3d DCA 1959)
- Solomon v. Baron de Hirsch Meyer and Milton Weiss, 116 So. 2d 37 (Fla. 3d DCA 1959)