M. I. ROBBINS, APPELLANT,
v.
RUSSELL THOMPSON, APPELLEE
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In this appeal, the court addresses whether a trial court abused its discretion in denying a defendant's motion to set aside a default judgment. The court holds that while the default was properly entered, the defendant retained the right to contest damages at trial, and the trial court's exclusion of the defendant from participating on the damages issue constituted reversible error.
The trial court did not abuse its discretion in denying the motion to set aside the default. However, even after a default is entered, a defendant retains the right to contest the amount of damages through introduction of evidence in mitigation and cross-examination. The trial court's exclusion of defendant from participating on the damages issue was error.
[1] A trial court may grant relief from a default or default judgment upon a showing of a meritorious defense and a legal excuse for noncompliance with rules.
[2] A trial court's denial of a motion to vacate a default will be affirmed unless the denial constitutes an abuse of discretion.
Previewing 2 of 4 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“The general rule in respect to setting aside a default or a final judgment consequent thereon is that relief may be granted within the sound discretion of the trial court upon showing of the existence of a meritorious defense and a legal excuse for failure to comply with the rules.”
Establishes the standard for relief from default judgment
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Join FLexlaw to unlock all legal intelligencePlaintiff moved for entry of default based on defendant's failure to timely serve an answer or otherwise defend. After default was entered, the case p…
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PER CURIAM.
This is an appeal by M. I. Robbins, defendant below, from an order denying defendant's motion to set aside default and entering final judgment in favor of the plaintiff pursuant to such default.
The plaintiff moved for the entry of a default on the basis of defendant’s failure to serve an answer or otherwise defend within the time prescribed by law. A default having been entered, the cause proceeded to trial. Defendant was present at the time set for trial and at that time filed his motion to vacate and a responsive pleading.
The general rule in respect to setting aside a default or a final judgment consequent thereon is that relief may be granted within the sound discretion of the trial court upon showing of the existence of a meritorious defense and a legal excuse for failure to comply with the rules. Florida Investment Enterprises, Inc. v. Kentucky Co., Fla.App.1964, 160 So. 2d 733. The defendant has failed to demonstrate that the order denying defendant’s motion to vacate on the basis of excusable neglect constituted an abuse of discretion. Smiles v. Young, Fla.App.1973, 271 So. 2d 798; Farish v. Lum’s, Inc., Fla. 1972, 267 So. 2d 325; 19 Fla.Jur. Judgments and Decrees, Sec. 459. Although the default deprived the defendant of the right to contest the existence of plaintiff’s claim and his liability thereon, defendant still had the right to contest the amount of damages by way of the introduction of evidence in mitigation of them or by cross-examination. Stevenson v. Arnold, Fla.1971, 250 So. 2d 270; Holder Turpentine Co. v. M. C. Kiser Co., 1914, 68 Fla. 312, 67 So. 85; Russ v. Gilbert, 1882, 19 Fla. 54. The reconstructed record of the proceedings below (the same not having been stenographically reported) reflects that the action of the trial court was of such nature as to preclude the defendant from participating at the trial on the issue of damages.1
Accordingly, that portion of the final judgment determining the amount of damages is vacated and set aside and the cause remanded for further proceedings on the issue of damages. In all other respects the final judgment is affirmed.
Reversed, in part; affirmed, in part.
OWEN, C. ]., and CROSS and MA-GER, JJ., concur. .The judge appeared to be of the view that since the default was entered the defendant did not have the right to put on testimony or cross-examination. Defendant’s “acquiescence” to this observation did not, under the particular facts and circumstances, constitute a waiver of his right to submit the matter for review.
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Albertson v. Stark, 294 So. 2d 698 (Fla. 4th DCA 1974)…N. Y., Fla.App.1966, 184 So. 2d 491; Black v. [*701] State, Fla.App.1965, 173 So. 2d 166; Sanford v. Rubin, Fla.1970, 237 So. 2d 134; General Portland Land Development Co. v. Stevens, Fla.App.1974, 291 So. 2d 250; Robbins v. Thompson, Fla.App.1974, 291 So. 2d 225. Although I would in no sense condone the conduct and statements complained of, I cannot categorize or characterize them as being of such magnitude as to fall within the “fundamental error” doctrine so as to obviate the necessity for establishing a…
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BAY Prods. Corp. v. Winters, 341 So. 2d 240 (Fla. 3d DCA 1976)…evidence in mitigation of the damages. We note that the pleadings and briefs allege that only a portion of the kit was not delivered. As such, we believe that a hearing should be held to determine appellee’s actual damages. See Robbins v. Thompson, 291 So. 2d 225 (Fla.4th DCA 1974). Accordingly, after considering the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, we conclude that reversible error has been demonstrated. Therefore, for the reasons…
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THE Florida BAR v. Porter, 684 So. 2d 810 (Fla. 1996)…t inaccuracies in the referee's report require a new disciplinary proceeding. . Under this rule, the entry of default precludes a party from contesting the existence of the plaintiff's claim and liability thereon. See generally Robbins v. Thompson, 291 So. 2d 225 (Fla. 4th DCA 1974). Thereafter, a party has the right to contest damages caused by the party’s wrong but no other issue. Harless v. Kuhn, 403 So. 2d 423 (Fla.1981).…
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
- Farish v. Lum's, Inc., 267 So. 2d 325 (Fla. 1972)
- Fla. Inv. Enters., Inc. v. The Ky. Co., Inc., 160 So. 2d 733 (Fla. 1st DCA 1964)
- Smiles v. Young, 271 So. 2d 798 (Fla. 3d DCA 1973)
- Russ v. John B. Gilbert et ux., 19 Fla. 54 (Fla. 1882)
- Stevenson v. Arnold, 250 So. 2d 270 (Fla. 1971)
- Holder Turpentine Co. v. M. C. Kiser Co., 68 Fla. 312 (Fla. 1914)