ROSS O'COUNTRY, APPELLANT,
v.
TOWN SANDWICH SHOP, APPELLEE
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The appellate court affirmed the trial court's decision, finding no abuse of discretion in denying the defendant's motion for relief from judgment. The defendant's attorney's failure to appear for trial and alleged mistake about the trial date did not constitute excusable neglect.
No, the trial court did not err in proceeding without a jury. No, the trial court did not abuse its discretion in refusing to set aside the judgment.
[1] A trial court does not err in hearing a case without a jury when the defendant's attorney and witnesses fail to appear for trial after a demand for jury trial has been ma…
[2] A trial court's refusal to set aside a judgment is affirmed when the moving party fails to show legal grounds or offer an excuse for their negligence or default.
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Join FLexlaw to unlock all legal intelligence“In considering the exercise of discretion courts must recognize that litigants may not properly be allowed with impunity to disregard the process of the court; and, indeed, it would be an abuse of discretion to vacate a judgment where the moving party shows no legal ground therefor and offers no excuse for his own negligence or default.”
Establishes the standard for vacating a judgment and the need for a legal ground and excuse for default.
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Join FLexlaw to unlock all legal intelligenceThe defendant, Ross O'Country, appealed a final judgment against him, arguing the trial court erred by proceeding without a jury and by refusing to se…
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PER CURIAM.
This is an appeal by the appellant, the defendant in the trial, seeking a review of final judgment and an adverse ruling denying the defendant’s motion for relief from final judgment alleging a mistake by his lawyer as to date of trial.
The appellant makes two points to be determined by this court on appeal. The appellant alleges that the trial court erred in hearing the case without a jury after his attorney and witnesses failed to appear for trial and a demand for jury trial had been made, and, secondly, the trial court erred in its refusal to set aside the judgment because of the excusable neglect of his lawyer. Examination of the pleadings discloses that appellant’s point that the trial court erred in hearing the case without jury trial is without merit. The record .on appeal reveals that the trial court carefully considered the arguments of counsel and the affidavits filed in connection with the motion for relief from the trial court in refusing the appellant’s motion for new trial and relief from final judgment. See Winter Park Arms, Inc. v. Akerman, Fla.App.1967, 199 So. 2d 107, 109, wherein the court stated:
“In considering the exercise of discretion courts must recognize that litigants may not properly be allowed with impunity to disregard the process of the court; and, indeed, it would be an abuse of discretion to vacate a judgment where the moving party shows no legal ground therefor and offers no excuse for his own negligence or default.”
For a further discussion of the application of judicial discretion, we find in Farish v. Lum’s, Inc., Fla.1972, 267 So. 2d 325, 327, as follows:
“The exercise of discretion by a trial judge who sees the parties first-hand and is more fully informed of the situation, is essential to the just and proper application of procedural rules. In the absence of facts showing an abuse of that discretion, the trial court’s decision excusing, or refusing to excuse, noncompliance with rules, such as Rule 1.370, must be affirmed.”
Affirmed.
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Hyun LEE and Oh Hi Lee v. Su Shin Chung and Yang Soon Chung, 528 So. 2d 1313 (Fla. 2d DCA 1988)…onsidered an abuse of discretion for a trial court to vacate a judgment under circumstances where the moving party has demonstrated no legal ground and offered no excuse except that party’s own negligence or default. O’Country v. Town Sandwich Shop, 332 So. 2d 648 (Fla. 3d DCA 1976). Where, as here, there is an unsworn motion, not supported by evidence of any sort at the hearing, the motion, without more, does not warrant vacating a prior final judgment which on its face appears proper. See Yu v. Weaver, 364…
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Schultz v. Time Warner Ent. Co., 906 So. 2d 297 (Fla. 5th DCA 2005)…r relief. The- rendition date of the judgment is the date from which the right to appeal commences, and the attorney should have determined when that occurred. See Turner v. State, 557 So. 2d 939 (Fla. 5th DCA 1990); O’Country v. Town Sandwich Shop, 332 So. 2d 648, 649 (Fla. 3d DCA 1976). The trial court granted Schultz relief pursuant to rules 1.540(a) and (b), Florida Rules of Civil Procedure.4 Generally, the standard of review of an order entered pursuant to Rule 1.540 is a gross abuse of discretion. Tild…
Authorities Cited
- Farish v. Lum's, Inc., 267 So. 2d 325 (Fla. 1972)
- Winter Park Arms, Inc. v. Akerman, 199 So. 2d 107 (Fla. 4th DCA 1967)