STERLING DRUG, INC., ETC., PETITIONER,
v.
FRANCIS E. WRIGHT, RESPONDENT
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Sterling Drug, a foreign corporation, failed to receive service of process due to a clerical error by its resident agent, resulting in a default judgment of $500,000. The Florida Supreme Court held that the trial court did not abuse its discretion in vacating the default based on excusable neglect, reversing the District Court of Appeal's decision that had relied solely on the lack of personal notice.
The trial court did not abuse its discretion in vacating the default judgment based on excusable neglect. The District Court erred in reversing the trial court's order because it failed to consider whether the order was properly granted on the ground of excusable neglect, instead restricting its analysis solely to the effect of lack of personal notice.
[1] A default judgment may be vacated upon a showing of excusable neglect, even if substitute service of process was properly made.
[2] A trial court's decision to vacate a default judgment is reviewed for an abuse of discretion.
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Join FLexlaw to unlock all legal intelligence“a default judgment may not be set aside because of a showing that actual notice was not received by the defendant”
States the holding from Barnett Bank v. Folsom that the District Court relied upon to reverse the trial court
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Join FLexlaw to unlock all legal intelligenceFrancis Wright filed a complaint against Sterling Drug, Inc., alleging the drug caused her blindness. Sterling Drug designated Prentice-Hall Corporati…
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BOYD, Justice.
Francis Wright filed a complaint for damages against Sterling Drug, Inc., alleging that the corporation manufactured a drug which caused her blindness. Because the corporation has its main office in New York it has designated Prentice-Hall Corporation System as its resident agent in Florida. John Buchanan is the agent of Prentice-Hall who, at the time Wright’s complaint weis filed, initially received service of process on foreign corporations for whom Prentice-Hall was resident agent. Wright’s complaint and a summons were delivered to Buchanan, but due to a clerical error Prentice-Hall’s main office did not receive them and as a result Sterling did not receive personal notice of process and did not answer the complaint or appear. On December 19, 1972, a default was entered against Sterling. The default was reduced to judgment and final judgment was entered, pursuant to jury verdict, in the sum of $500,000. As soon as Sterling received notice of the judgment it moved to vacate. After further litigation before the Circuit Court and the District Court of Appeal, Second District, the trial court granted Sterling’s amepded motion to vacate the default because Sterling had not been personally notified of the suit prior to entry of the final judgment and because the failure to transmit the process to Sterling was excusable, since it was due to the mistake of an employee of Prentice-Hall.
In its decision reported at 321 So. 2d 460, the District Court of Appeal, Second District, reversed relying on Barnett Bank of Clearwater v. Folsom, 306 So. 2d 186 (Fla. 2d DCA 1975). In Folsom the Court held that, if substitute service of process is made under Section 48.031, Florida Statutes (1973), a default judgment may not be set aside because of a showing that actual notice was not received by the defendant. The court reasoned from Folsom that personal notice to a foreign corporation would not be required if the resident agent is notified of the litigation. We have jurisdiction 1 because of conflict with North Shore Hospital Inc. v. Barber, 143 So. 2d 849 (Fla. 1962).
The District Court in its opinion stated the following:
“We have, as we should, carefully examined the order appealed in this case and we reach the conclusion that the said order is grounded on the failure of the resident agent, Prentice-Hall, to notify appellee, and that appellee was not personally notified of the pendency of the action against it.” 321 So. 2d at 462.
However, as the court recognized earlier in its opinion, the motion was also granted because of the finding expressed in the order that,
“The failure to transmit the suit papers to Sterling Drugs, Inc., was not due to any fault of the Defendant, Sterling Drugs, Inc., but was due to a mistake among the employees of Prentice-Hall Corporation Systems, Inc., the service-of-process agent of Sterling Drugs, Inc.” 321 So. 2d at 461.
In restricting the foundation of its decision to an analysis of the effect of lack of personal notice, the court failed to consider that the order might have been properly granted on the ground of “excusable neglect.”
In North Shore Hospital, supra, this Court stated:
“In Coggin v. Barfield, 150 Fla. 551, 8 So. 2d 9, and Coggin v. Morris, 150 Fla. 555, 8 So. 2d 11, which were by implication relied on by the District Court as well as in Benedict v. W. T. Hadlow Co., 52 Fla. 188, 42 So. 239, this court held that a showing of gross abuse of a trial court’s discretion is necessary on appeal to justify reversal of the lower court’s ruling on a motion to vacate.” 143 So. 2d at 852.
The Circuit Court in this case did not commit an abuse of discretion in vacating the default. It found excusable neglect to have been the cause of Sterling’s failure to answer and appear and was further persuaded by the size of the judgment and the defendant’s diligence in moving to vacate the default. Since there was no abuse of discretion by the trial court, its order should not have been disturbed.
The opinion of the District Court of Appeal, Second District, is quashed and the cause remanded for proceedings consistent with this opinion.
It is so ordered.
OVERTON, C. J., and ADKINS, ENGLAND, HATCHETT and DREW (Retired), JJ., concur. . Art. V, § 3(b)(3), Fla.Const.
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Citator
Cited By (30 total)
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B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)…of discretion not to allow a defendant to present his defense if he had a meritorious one, was innocent of culpable negligence and willing to plead and to go to trial without delay.” Id. 150 Fla. 554, 8 So. 2d 11. See Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla.1977); North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Waterson v. Seat and Crawford, 10 Fla. 326 (1863); County National Bank of North Miami Beach v. Sheridan, Inc., supra; Pedro Realty Inc. v. Silva, 399 So. 2d 367 (Fla.3d DC…
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Garcia Ins. Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977)…v. Barfield, 150 Fla. 551, 8 So. 2d 9 (1942), and has been reiterated recently both by this court, Chamberlin v. Mid-Century Insurance Co., et al., 350 So. 2d 364 (Opinion filed October 5, 1977), and the supreme court, Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla.1977). See also this court’s recent opinion in Bailey v. Deebold, 351 So. 2d 355 (Opinion filed October, 21, 1977). With reference to the former doctrine, appellate courts after Barber have not hesitated to reverse lower courts for failure to…
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Cnty. Nat'l Bank OF N. Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981)…itute excusable neglect. Associated Medical Institutions, Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976); North Shore Hospital, Inc. v. Barber, supra; Stevens-Davis Co. v. Stock, 141 Fla. 714, 193 So. 745 (1940); Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla.1977). Of course, each of these cases turn upon its own complete set of facts, but we believe they adequately demonstrate the point that an unintentional mistake such as the one involved herein may be excused where no substantial prejudice to t…
Previewing 3 of 30 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)
- Etienne v. Irvin, 45 Fla. L. Weekly D2032 (Fla. 3d DCA 2020)
- Benedict v. W. T. Hadlow Co., 52 Fla. 188 (Fla. 1906)
- Barnett Bank OF Clearwater, N.A. v. Folsom, 306 So. 2d 186 (Fla. 2d DCA 1975)
- Coggin v. Morris, 150 Fla. 555 (Fla. 1942)
- Wright v. Sterling Drug, Inc., 321 So. 2d 460 (Fla. 2d DCA 1975)