Conidaris v. Credit Alliance Corp.

• Court: Florida District Court of Appeals
• Writing for the Court: HARRIS; W. SHARP; COBB; COBB
• Citation: Conidaris v. Credit Alliance Corp., 558 So.2d 523 (Fla. App. 1990)
• Decision Date: 22 March 1990
• Docket Number: No. 89-909,89-909
• Parties: 15 Fla. L. Weekly D773 Robert CONIDARIS, Appellant, v. CREDIT ALLIANCE CORPORATION, etc., et al., Appellees.

Page 523

558 So.2d 523

15 Fla. L. Weekly D773

Robert CONIDARIS, Appellant, v. CREDIT ALLIANCE CORPORATION, etc., et al., Appellees.

No. 89-909.

District Court of Appeal of Florida Fifth District.

March 22, 1990.

Joseph J. Tschida of Russell & Hull, P.A., Orlando, for appellant.

William M. Lindeman of Foster & Kelly, Orlando, for appellees.

HARRIS, Judge.

Robert Conidaris appeals a $90,164 judgment entered against him after default. He contends the trial judge should have set aside the default and permitted the cause to proceed on the merits. We agree and reverse.

Credit Alliance Corp. sued B & B Paving Contractors, Inc., Robert Conidaris and Robert La Force in a ten count complaint. The first nine counts seek relief only against the corporation; the tenth count sues the individuals on a guaranty agreement. The corporation was served by service on La Force on May 26, 1988 and substituted service was effected on Conidaris on May 26, 1988.

On July 11, 1988 appellee moved for default against the individual defendants and default was entered by the clerk on that date. Neither notice of the motion for entry of default nor a copy of the default was served on Conidaris. However, on July 13, 1988 a notice of automatic stay of the action against the corporation under the Bankruptcy Code was filed in the circuit court. On July 21 appellee moved to drop the corporation as a party defendant and on July 28, 1988 the trial judge entered its order dropping the corporation as a party and providing that the case should proceed only against the individual defendants. A copy of this order was served on Conidaris.

When appellant received his copy of this order he inquired as to the status of his case and discovered that corporate counsel had not filed an appearance for the individual defendants. On or before September 2, 1988 appellant employed counsel to represent him in this cause. Counsel filed notice of appearance on September 2 and a motion to set aside default on September 19, 1988 together with Conidaris' affidavit and proposed defense of forgery. In his affidavit Conidaris stated that as a principal in the corporation he was advised that corporate counsel, Don Stichter, would be representing the individual defendants as well as the corporation. He did not become aware that he was unrepresented until after the court's order of July 28. He further advised that the signature above his name on the guaranty was not his and was not authorized and that he had no individual obligation for the corporation's debt.

The trial court, after hearing, refused to set aside the default on October 18, 1988. A final default judgment was entered against appellant on April 5, 1989. Appellant contends that he established excusable neglect, a meritorious defense, and acted with reasonable diligence in attempting to set aside the default and that the court erred in refusing to set aside the default and to permit the cause to proceed on the merits.

Appellee concedes that forgery is a meritorious defense. It contends however that relying on the statement of another principal of the corporation that corporate counsel would also be representing the interests of the individuals could not be excusable neglect. We disagree. See Brandt v. Dolman, 421 So.2d 689 (Fla. 4th DCA 1982). Appellee also urges that Conidaris failed to exercise due diligence upon learning of the entry of the default. It appears to us that what would constitute due diligence must be determined from examining the facts of each case. Here Conidaris received notice of the default sometime after July 28 and contacted an attorney no later than September 2. He spent approximately 30 days looking into the matter and choosing an attorney. The lawyer then took an additional 17 days to file the motion to set aside default. Even if we charge the lawyer's unexplained delay in filing an urgent motion to Conidaris in determining his diligence, still the total period is less than two months. Certainly in some...