George v. Radcliffe
| Decision Date | 06 October 1999 |
| Docket Number | No. 98-4416.,98-4416. |
| Citation | 753 So.2d 573 |
| Parties | Peter GEORGE, Appellant, v. James RADCLIFFE and Performance Concepts, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Keith T. Grumer and Rowena D. Reich of Grumer & Levin, P.A., Fort Lauderdale, for appellant.
John R. Hargrove and Cristina M. Pierson of Heinrich Gordon Hargrove Weihe & James, P.A., Fort Lauderdale, for appellees.
Keith T. Grumer, Maidenly Sotuyo-Macaluso and Rowena D. Reich of Grumer & Levin, P.A., Fort Lauderdale, for appellant, on rehearing.
Appellant was the plaintiff in this case, and the appellees were defendants who filed a counterclaim against plaintiff. The trial court granted defendants' motion for a default judgment on their counterclaim because plaintiff failed to file an answer. We affirm the order denying his motion to vacate the default judgment.
On May 6, 1998, the trial court entered an agreed order allowing amendment of the counterclaim, and on that same date the parties agreed that the litigation would "stand still" until May 29, 1998, the date set for a hearing on another matter. The "standstill" period was not extended. The agreed order required plaintiff to answer the amended counterclaim in twenty days.
Plaintiff did not answer the amended counterclaim, even after expiration of the "standstill" period, and on July 13, 1998, defendants moved for default against plaintiff for failing to answer their amended counterclaim. Plaintiff's counsel telephoned counsel for defendants on July 24 and asked for an extension of time, but defendants' counsel would not agree. The hearing on the motion for default was set for and took place on July 28, 1998, and in spite of the denial of his request for additional time, plaintiffs counsel did not file an answer.
The trial court granted the motion for default, and, three weeks later, plaintiff moved to set the default aside alleging excusable neglect and meritorious defenses. The motion admitted that plaintiffs counsel had telephoned defendants' counsel on July 24 seeking a three day extension to July 31 to file the answer because his secretary was on vacation, which opposing counsel refused to do. Plaintiff's counsel alleged in the motion, and testified at the hearing on the motion to vacate, that he had an understanding with prior counsel representing defendants, who were replaced on July 15, 1998, that he would have additional time. The trial court denied the motion to vacate.
Our standard of review of an order ruling on a motion to vacate a default judgment is whether there has been a gross abuse of the trial court's discretion. North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla.1962). We find no such abuse in this case and affirm.
ON MOTION FOR REHEARING
Appellant argues in his motion for rehearing that the gross abuse of discretion standard of review which we applied should only be used in reviewing an order granting a motion to vacate a default judgment. He contends that an order denying a motion to vacate a default judgment is reviewed under the less stringent abuse of discretion standard. There are cases which so hold. See e.g., Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206 (Fla. 2d DCA 1990)
; Finkel Outdoor Prods., Inc. v. Lasky, 529 So.2d 317 (Fla. 2d DCA 1988).
We used gross abuse of discretion because that is what the Florida Supreme Court held the standard to be in North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962), the landmark case on setting aside default judgments. Although North Shore involved review of an order granting a motion to vacate, the North Shore court relied on Benedict v. W.T. Hadlow Co., 52 Fla. 188, 42 So. 239 (1906), in which the trial court denied a motion to vacate and the standard of review applied was gross...
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Ray v. THOMSON-KERNAGHAN & CO. LTD.
...disagree with the two-tiered standard of review that this court has recently added to review on this subject. See George v. Radcliffe, 753 So.2d 573 (Fla. 4th DCA 2000) (holding that there are two standards in review of orders on motions to vacate defaults: simple abuse of discretion for or......
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Boatfloat, LLC v. Central Transport Intern.
...judgment is abuse of discretion." Top Dollar Pawn Too, Inc. v. King, 861 So.2d 1264, 1265 (Fla. 4th DCA 2003) (citing George v. Radcliffe, 753 So.2d 573 (Fla. 4th DCA 2000) (on The crux of BoatFloat's argument on appeal is that service of process by posting the complaint and summons on the ......
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Polymer Extrusion Tech. v. Glas Shape Mfg.
... ... as the standard of review, when the trial court has denied a ... motion to vacate." George v. Radcliffe, 753 ... So.2d 573, 575 (Fla. 4th DCA 1999). By contrast, the higher ... standard of "gross abuse of discretion" must be ... ...
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King-Coleman v. Geathers
...review in default relief is gross abuse of discretion, this court has misread the supreme court's opinion. Compare George v. Radcliffe, 753 So.2d 573 (Fla. 4th DCA 2000) (holding that because policy favors trials over defaults greater showing is required to reverse order vacating defaults t......
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Chapter 1-4 Defaults
...Chetu, Inc. v. Franklin First Fin., Ltd., 4D18-2428, 2019 Fla. App. LEXIS 11309 (Fla. 4th DCA July 17, 2019).[39] George v. Radcliffe, 753 So. 2d 573 (Fla. 4th DCA 1999).[40] Somero v. Hendry Gen. Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985); Gables Club Marina, LLC v. Gables Condo & Cl......
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Chapter 1-4 Defaults
...Chetu, Inc. v. Franklin First Fin., Ltd., 4D18-2428, 2019 Fla. App. LEXIS 11309 (Fla. 4th DCA July 17, 2019).[38] George v. Radcliffe, 753 So. 2d 573 (Fla. 4th DCA 1999).[39] Somero v. Hendry Gen. Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985); Gables Club Marina, LLC v. Gables Condo & Cl......