Florida Aviation Academy, Dewkat Aviation, Inc. v. Charter Air Center, Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: ERVIN
• Citation: Florida Aviation Academy, Dewkat Aviation, Inc. v. Charter Air Center, Inc., 449 So.2d 350 (Fla. App. 1984)
• Decision Date: 03 April 1984
• Docket Number: No. AT-477,AT-477
• Parties: FLORIDA AVIATION ACADEMY, DEWKAT AVIATION, INC., a Florida corporation, Dewkat, II, Inc., Dewey G. Oliver, and Katherine L. Oliver, Appellants, v. CHARTER AIR CENTER, INC., A Florida corporation, Appellee.

Page 350

449 So.2d 350

FLORIDA AVIATION ACADEMY, DEWKAT AVIATION, INC., a Florida corporation, Dewkat, II, Inc., Dewey G. Oliver, and Katherine L. Oliver, Appellants, v. CHARTER AIR CENTER, INC., A Florida corporation, Appellee.

No. AT-477.

District Court of Appeal of Florida First District.

April 3, 1984.

Rehearing Denied May 17, 1984.

Milton H. Baxley, II, Gainesville, for appellants.

Robert E. Roundtree, Jr. of Clayton, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellee.

ERVIN, Chief Judge.

Appellants seek review of (1) the trial court's order denying their motion to set aside a default and final judgment entered, it was alleged, as a result of the inadvertence and excusable neglect of their attorney, and (2) the trial court's later order declining to rule on their motion to set aside the default and final judgment, caused by the fraud and misrepresentation of the opposing party. We reverse as to point one and decline to address point two.

Charter, the plaintiff below, filed an action on March 9, 1983, for money owed by appellants on goods and services delivered to them by Charter. On April 8, 1983, Charter filed a motion for an entry of default against appellants due to their failure to file or serve any pleading in the cause, resulting in the clerk's entering a default ¹ on the same date against all appellants. A final hearing was held on May six, unattended by appellants, which resulted in the entry of a final judgment on May 10, 1983, awarding to Charter the principal amount of $88,844.75, plus interest of $3,388.36 and court costs of $106.50.

On May 24, 1983, appellants filed a motion seeking relief from the default and final judgment on grounds of the inadvertence or excusable neglect of their attorney pursuant to Florida Rule of Civil Procedure 1.540(b), ² and attached to it an affidavit explaining that service of process had been made on appellants through the Union County Sheriff's office on March 11, 1983, and that appellant, Dewey Oliver, on March 14, delivered the summons and complaint to his attorney, who in turn gave the complaint to his secretary, who erroneously filed it without ascertaining the deadline for filing an answer to the complaint. Consequently, the attorney remained unaware that any responsive pleading was due until after Oliver advised him on May 11 that he had received a copy of the final judgment in favor of Charter, whereupon he immediately contacted Charter's attorney to explain the secretarial error, as well as the fact that the firm had undergone a complete change of secretaries between March nine and May six. The motion further asserted that Charter's attorney was aware, due to continuances arranged in other cases pending between the parties, that Oliver was scheduled for major surgery on May one. Also attached to the motion was a proposed answer which listed six affirmative defenses. ³

Charter's attorney responded that appellants were provided with ample notice and opportunity to respond in that process was duly served through the sheriff's office; default was thereafter entered as a result of appellants' failure to furnish any answer, and that notice was reasonably provided to them of the May sixth final hearing, which they failed to attend.

As stated, the Rule 1.540(b) motion for relief from judgment caused by the inadvertence and excusable neglect of defense counsel was denied by the trial court. Appellants filed a second motion pursuant to Rule 1.540(b)(3) ⁴ to set aside the default on grounds of fraud and misrepresentation, which the court declined to address, finding that the motion was barred by the doctrine of res judicata. We are of the view that the first motion and affidavit establish excusable neglect and therefore reverse the court's denial of the motion for relief.

The trial court may properly grant a motion to vacate a default judgment if the movant establishes both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense. See L.B.T. Corporation v. Camacho, 429 So.2d 88 (Fla. 5th DCA 1983); Abray Construction Company, Inc. v. Star Swimming Pools, Inc., 426 So.2d 1046 (Fla. 2d DCA 1983). Some cases have imposed the additional requirement that the movant demonstrate due diligence in seeking relief from the default. Lacore v. Giralda Bakeshop, Inc., 407 So.2d 275 (Fla. 3d DCA 1982); County National Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981).

Although the trial court is vested with broad discretionary power in determining whether or not the facts constitute excusable neglect justifying the vacating of a default, the courts generally have adopted a policy of liberality toward the vacation of defaults in order to enable the parties to reach the merits of the cause. See North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Westinghouse Elevator Company v. DFS Construction Company, 438 So.2d 125 (Fla. 2d DCA 1983). Given these competing considerations, the appellate courts occupy a precarious position when reviewing rulings on motions to vacate default judgments:

In the first instance trial courts are advised that they should follow a policy of liberality in exercising their discretion to vacate default judgments. On the other hand appellate courts are advised that they must find a gross abuse of discretion by the trial court before disturbing its ruling on a motion to vacate.

County National Bank of North Miami Beach v. Sheridan, at 503 (e.s.); see e.g., North Shore Hospital, Inc. v. Barber.

Notwithstanding the different appellate courts' approaches to such issues, we prefer to follow that line of cases recognizing an avenue of relief is available to the defaulted party in those instances in which clerical or secretarial error has been demonstrated, and the presence of substantial prejudice to the opposing party is lacking. See e.g., Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 19...