OVERSEAS DEVELOPMENT, INC., A FLORIDA CORPORATION, APPELLANT,
v.
DOMINION MORTGAGE CORPORATION, A FLORIDA CORPORATION, APPELLEE
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Overseas Development appeals the trial court's denial of its motion to set aside a default judgment for an unpaid mortgage broker's commission. The court affirmed the denial, holding that the inadvertent loss of the complaint by the defendant's vice president does not constitute sufficient cause to vacate a default judgment.
The court held that the inadvertent misplacement of the complaint by the vice president does not constitute sufficient cause to vacate the default judgment. Additionally, the court found that the alleged meritorious defenses did not clearly appear from the attachments to the plaintiff's complaint, and that once a default judgment is properly entered, the defendant cannot contest the amount of damages without first making an appearance or filing a pleading.
[1] A trial court may grant relief from a default judgment within its sound discretion upon a showing of a meritorious defense and a legal excuse for noncompliance with court…
[2] Mere inadvertence or excusable neglect in misplacing a complaint does not constitute sufficient cause to justify vacating a default judgment.
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“The general rule with regard to setting aside judgments entered on default is that relief may be granted within the sound discretion of the trial judge upon a showing of the existence of a meritorious defense and a legal excuse for the failure to comply with the rules.”
Establishes the two-part test for setting aside default judgments: meritorious defense and legal excuse.
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Join FLexlaw to unlock all legal intelligenceDominion Mortgage Corporation filed suit against Overseas Development for a $12,700 mortgage broker's commission on February 7, 1975. The complaint wa…
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PER CURIAM.
Defendant, Overseas Development, Inc., seeks reversal of an order denying its motion to set aside judgment on default.
On February 7, 1975 plaintiff, Dominion Mortgage Corporation, filed suit for a mortgage broker’s commission of $12,700 pursuant to an agreement between the parties. The complaint was served upon Felix S. Cabada, president of Overseas, and six weeks later on March 2, having received no responsive pleading, plaintiff moved for entry of a default against the defendant which was entered on March 24. On March 27 the plaintiff was granted a final judgment for $12,700 plus costs and interest. On May 9 defendant filed its motion to set aside the default on the ground that the complaint had been lost in transit from one lawyer to another. Defendant alleged that upon being served, Mr. Cabada took this complaint to defendant’s attorney who advised he could not represent defendant and at Mr. Cabada’s request delivered the complaint to Alejandro Briones, vice president of the defendant, for delivery to another attorney. Defendant claimed that as a result of inadvertence or excusable neglect, the complaint was lost and not received by the other attorney until after entry of the final judgment. Defendant further alleged that it had good and adequate defense as made clear from the attachments to plaintiff’s complaint. Following a hearing on motion to vacate, the trial judge entered an order of denial and defendant appeals. Defendant primarily alleges that the trial judge abused his discretion in refusing to set aside the default judgment.
The general rule with regard to setting aside judgments entered on default is that relief may be granted within the sound discretion of the trial judge upon a showing of the existence of a meritorious defense and a legal excuse for the failure to comply with the 'rules. Winter Park Arms, Inc. v. Akerman, Fla.App.1967, 199 So. 2d 107 and cases cited therein.
The only ground alleged for vacation of the default judgment was that the vice president inadvertently misplaced the complaint and failed to deliver it to defense counsel until after the entry of the March 7 final judgment. We find that this failure on the part of the vice president does not constitute sufficient cause to justify the vacating of the default judgment. Cf. Winter Parks Arms, Inc., supra and Acme Fast Freight, Inc. v. Bell, Fla.App.1975, 318 So. 2d 212. We also note with respect to the allegation of the existence of meritorious defenses in defendant’s motion to vacate that such defenses do not clearly appear from the attachments to the plaintiff’s complaint.
Defendant secondly argues that the trial judge erred as to the amount of damages awarded in the final judgment. We cannot agree.
The motion for default judgment having been properly granted and defendant having failed to make any appearance or file any pleading until well after the entry of the final judgment, we conclude the amount of damages cannot now be contested.
Affirmed.
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S.B. P'rs v. Holmes, 479 So. 2d 280 (Fla. 2d DCA 1985)…dical Institutions, Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976) (hospital administrator’s secretary misfiled complaint in “terminated” case file instead of the “pending” case file). Cf. Overseas Development, Inc. v. Dominion Mortgage Corp., 330 So. 2d 845 (Fla. 3d DCA 1976) (failure of corporate vice president in misplacing complaint and not delivering it to his counsel until after entry of final default judgment did not constitute excusable neglect). Further, the record reveals that at the time the…
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Hunt Exterminating Co., Inc. v. Crum, 598 So. 2d 113 (Fla. 2d DCA 1992)…ve been confused. The trial court declined to set aside the clerk’s default, relying upon this court’s decision in Goldome v. Davis, 567 So. 2d 909 (Fla. 2d DCA 1990), and a similar decision in Overseas Development, Inc. v. Dominion Mortgage Corp., 330 So. 2d 845 (Fla. 3d DCA 1976), cert. denied, 342 So. 2d 1103 (Fla.1977). We note that both of these decisions involved default judgments entered by the trial judge, rather than clerk’s defaults challenged prior to the entry of judgment. In both cases, the judg…
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Long Island Ins. Co. v. Le-Bert Int'l, Inc., 349 So. 2d 1221 (Fla. 3d DCA 1977)…PER CURIAM. Affirmed. See: Acme Fast Freight, Inc. v. Bell, 318 So. 2d 212 (Fla. 3d D.C.A. 1975); Cal-U-Sonic v. Metric Systems Corporation, 330 So. 2d 63 (Fla. 1st D.C.A. 1976); Overseas Development, Inc. v. Dominion Mortgage Corporation, 330 So. 2d 845 (Fla. 3d D.C.A. 1976); Bay Products Corporation v. Winters, 341 So. 2d 240 (Fla. 3d D.C.A. 1976).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Winter Park Arms, Inc. v. Akerman, 199 So. 2d 107 (Fla. 4th DCA 1967)
- Acme Fast Freight, Inc. v. Bell, 318 So. 2d 212 (Fla. 3d DCA 1975)