Lindell Motors, Inc. v. Morgan

• Court: Florida District Court of Appeals
• Writing for the Court: CASANUEVA.
• Citation: Lindell Motors, Inc. v. Morgan, 727 So.2d 1112 (Fla. App. 1999)
• Decision Date: 12 March 1999
• Docket Number: No. 98-03512.,98-03512.
• Parties: LINDELL MOTORS, INC., Appellant, v. Floyd MORGAN and Diana Morgan, Appellees.

727 So.2d 1112

LINDELL MOTORS, INC., Appellant, v. Floyd MORGAN and Diana Morgan, Appellees.

No. 98-03512.

District Court of Appeal of Florida, Second District.

March 12, 1999.

Laura A. Olson and David C. Bearden of the Lawgroup, Tampa, for Appellant.

Scott T. Borders of Clark, Charlton, Martino & Borders, Tampa, for Appellees.

CASANUEVA, Judge.

Lindell Motors, Inc., appeals from an order denying its motion to vacate the default entered against it. We determine that the trial court abused its discretion in failing to set aside the default and reverse.

Floyd and Diana Morgan contracted to purchase a vehicle from Lindell. Subsequently a dispute arose over the Morgans' obligation to pay a down payment sum. The Morgans denied liability, and Lindell turned the debt claim over to a collection agency. Ultimately, the Morgans sued Lindell, asserting a violation of Florida's Consumer Collection Practices Act, section 559.72, Florida Statutes (1997), and libel per se. Lindell was served with the complaint on April 28, 1998. Upon motion, a clerk's default was entered against Lindell on May 27, 1997. On June 1, 1997, Lindell moved to set aside the default, concurrently filing a motion to dismiss or, alternatively, a motion for more definite statement. Lindell later amended both motions. In August, 1998, the trial court denied the motion to vacate, as well as a later motion for rehearing. A final default judgment was never entered.

Rule 1.500(d), Florida Rules of Civil Procedure, vests the trial court with discretion to set aside a default. In determining whether to exercise this power the court is required to consider several factors, among which is the diligence exercised by the movant in seeking relief. See Garcia Ins. Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977). In reviewing an order denying a motion to set aside a default, rather than a default judgment, an appellate court may exercise greater circumspection in the review process, see Hunt Exterminating Co., Inc. v. Crum, 598 So.2d 113 (Fla. 2d DCA 1992); and a party seeking to overturn an order denying a motion to vacate a default is held to a lesser standard than is required of a party seeking to overturn an order granting the same motion, see Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206 (Fla. 2d DCA 1990). These rules implement the principle of liberality in setting aside defaults so that lawsuits may be decided on their merits. See Bland v. Viking Fire Protection, Inc. of the Southeast, 454 So.2d 763 (Fla. 2d DCA 1984).

We begin by observing that Lindell exercised appropriate diligence...