WESTINGHOUSE CREDIT CORPORATION, A FOREIGN CORPORATION, APPELLANT,
v.
STEVEN LAKE MASONRY, INC., STEVEN A. LAKE AND DOLORES LAKE, APPELLEES
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Westinghouse Credit Corporation sought to reinstate a default judgment against Steven Lake Masonry, Inc. and related defendants after the trial court set it aside. The court held that the defendants' failure to act promptly after learning of the default, combined with their attorney's inexplicable inaction, constituted no excusable neglect under Florida civil procedure rules.
The court reversed the trial court's vacation of the default judgment, holding that no excusable neglect existed because the defendants' attorney failed to act without justification and the defendants failed to proceed with reasonable dispatch upon learning of the default. The court reinstated the final judgment.
[1] A trial court's discretion to set aside a default judgment is broad, but gross abuse is required for appellate reversal.
[2] A litigant's failure to act with no good reason provided by their attorney may support upholding a default judgment.
Previewing 2 of 5 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 message is clear. Negligence by a litigant's representative may be grounds for an independent suit, but it will not support the setting aside of a default judgment save under exceptional circumstance.”
Establishes the rule that attorney negligence alone is insufficient to vacate a default judgment
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Join FLexlaw to unlock all legal intelligenceWestinghouse served a complaint on the defendants, who turned it over to their attorney. The attorney inexplicably failed to take any action and later…
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LETTS, Judge.
This case involves the trial court’s setting aside of a final judgment entered after default. We find no excusable neglect and reverse.
The problem presented is a veritable mine field for trial judges, for it appears that whatever they do, the appellate court reverses. We agree that in such situations the trier of the fact should have wide discretion, which must be grossly abused to deserve reversal. This theory is further buttressed by the long standing policy of liberality towards the vacation of defaults, so that the merits of a cause may be reached, North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla.1977).
Yet there are two areas where the courts have consistently upheld defaults and both are factors in this case.
First, failure of the attorney to act with no good reason given, Sun Finance Corp. v. Friend, 139 So. 2d 484 (Fla. 3rd DCA 1962).
Second, failure to immediately react upon learning of the default. In Re Aston, 245 So. 2d 674 (Fla. 4th DCA 1971).
In this case the defendants below turned over the served complaint to a lawyer who inexplicably failed to do anything and justified his inaction by reporting a “disappearance” of the pleadings.1 Upon learning of this bizarre conduct, some four weeks after three copies of the complaint were served, the defendants waited a further 7 weeks before attempting to vacate, which was also some 30 days after receipt of a copy of the final judgment.
This case is analogous to Allen v. Wright, 350 So. 2d 111 (Fla. 1st DCA 1977) in which the defendant labored under the misapprehension that his insurer would defend him and additionally did nothing for over 50 days after notice of default. Notwithstanding the court held that failure of the insurer to defend was not “supportive of any theory of excusable neglect” and further that the defendant did not proceed with all possible dispatch upon becoming aware of the default.
Similar results have been reached in Bailey v. Deebold, 351 So. 2d 355 (Fla. 2nd DCA 1977) and Sun Finance Corp. v. Friend, 139 So. 2d 484 (Fla. 3rd DCA 1962).
The message is clear. Negligence by a litigant’s representative may be grounds for an independent suit, but it will not support the setting aside of a default judgment save under exceptional circumstance.
Moreover, swift action must be taken upon first receiving knowledge of any default. Further delay in excess of the time reasonably necessary to prepare and file a notice to vacate should prove fatal, absent some exceptional circumstance.
In the case at bar, we find the attorney’s inaction unacceptable and the delay, after learning of the default, unexceptional. As such, there exists no excusable neglect under Fla.R. of Civ.P. 1.540(b).
REVERSED WITH INSTRUCTIONS TO REINSTATE THE FINAL JUDGMENT.
ALDERMAN, C. J., and CROSS, J., concur. . The law firm representing appellees before this court, did not represent them at this juncture.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (41 total)
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Glenna Somero and Robert Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985)…judge who found excusable neglect. I believe our decision here conflicts with North Shore Hospital, Inc. v. Barber. It also all but does away with default judgments. . See, for example, Westinghouse Credit Corporation v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978) and compare it with County National Bank of North Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981).…
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Cnty. Nat'l Bank OF N. Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981)…cur. . Unlike the defaulted parties involved in two other recently decided cases out of this court. See Kar Kare Owners Group of Florida v. Chason, 356 So. 2d 851 (Fla. 4th DCA 1978) and Westinghouse Credit Corporation v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978).…
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Lazcar Int'l, Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007)…59 So. 2d 109, 109 (Fla. 2d DCA 1990). It has long been the law of this state, well understood by practitioners, that “swift action must be taken upon first receiving knowledge of any default.” Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329, 1330 (Fla. 4th DCA 1978). As this court has said, [I]t would appear that [this] requirement ... is directly related to the reasons for the entry of the default in the first place — to provide for prompt disposition of legal proceedings. In essence…
Previewing 3 of 41 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)
- Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla. 1977)
- Allen v. Wright, 350 So. 2d 111 (Fla. 1st DCA 1977)
- In re Tr. Under the Will of Fred A. Aston, 245 So. 2d 674 (Fla. 4th DCA 1971)
- Bailey v. Deebold, 351 So. 2d 355 (Fla. 2d DCA 1977)
- Malloy v. Chambers, 139 So. 2d 484 (Fla. 2d DCA 1962)
- SUN Fin. Corp. v. Friend, 139 So. 2d 484 (Fla. 3d DCA 1962)