Marshall Davis, Inc. v. Incapco, Inc., 89-01520
| Decision Date | 23 March 1990 |
| Docket Number | No. 89-01520,89-01520 |
| Citation | 558 So.2d 206 |
| Parties | 15 Fla. L. Weekly D783 MARSHALL DAVIS, INC., d/b/a Einstein Financial, Appellant, v. INCAPCO, INC., d/b/a Telamarketing Communications of Tampa Bay, Appellee. |
| Court | Florida District Court of Appeals |
Graham H. Nicol of Stiles, Allen & Taylor, P.A., Tampa, for appellant.
Jeffrey L. Cohen of Kass, Hodges & Massari, Tampa, for appellee.
Appellant, Marshall Davis, Inc., d/b/a Einstein Financial, appeals a final judgment in favor of appellee, Incapco, Inc., d/b/a Telamarketing Communications of Tampa Bay, which final judgment was entered as a result of a default. We find the trial court abused its discretion in failing to set aside the default judgment and reverse.
Incapco filed suit against Marshall Davis on an open account. Incapco perfected service of process on Marshall Davis, a Colorado based nationwide corporation, by serving the resident agent in Florida on January 9, 1989. The resident agent forwarded the summons and complaint to Dennis Holtorf, an employee of Marshall Davis. Marshall Davis had in place at the time a corporate procedure whereby Holtorf was responsible for ensuring that suit papers were forwarded to local counsel for Marshall Davis. Holtorf knew of and was familiar with the reporting procedure, as he had forwarded numerous suit papers to Marshall Davis's attorneys in the past. For unknown reasons, Holtorf, failing to comply with these policies, did not forward the papers that he received. Shortly thereafter, Holtorf left the employ of Marshall Davis. On March 3, 1989, the clerk of court entered a default against Marshall Davis. One month later, on April 6, 1989, the trial court entered a final judgment against Marshall Davis.
Marshall Davis alleged that it learned of the lawsuit and the default judgment on April 11, 1989. Then on April 26, 1989, counsel for Marshall Davis filed a motion to vacate the final judgment. Attached to the motion was a supporting affidavit setting forth facts relating to Marshall Davis's contention that its failure to respond to the complaint was due to excusable neglect. Marshall Davis also filed a motion to dismiss, setting forth its defenses to the complaint. The trial judge denied Marshall Davis's motion to vacate the final judgment.
In order to have a default set aside, a party must proceed diligently to have the default set aside and show excusable neglect * and a meritorious defense. Canney v. Canney, 453 So.2d 179 (Fla. 2d DCA 1984). In the instant case, Marshall Davis was diligent in filing the motion to set aside default after learning of the lawsuit. Also, Marshall Davis filed a sworn affidavit, stating that it had an established corporate policy for handling lawsuits which was not followed in this case. Courts of Florida have held that this constitutes excusable neglect....
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ALLSTATE FLORIDIAN INS. v. RONCO INVENT.
...a motion for relief from a default, the appellant must show a gross abuse of discretion by the trial court. Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206 (Fla. 2d DCA 1990). This extremely high standard of review reflects the implementation of the "principle of liberality" in setting......
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Geer v. Jacobsen, 2D03-3963.
...court had denied the motions. Lindell Motors, Inc. v. Morgan, 727 So.2d 1112, 1113 (Fla. 2d DCA 1999); Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206, 208 (Fla. 2d DCA 1990). We recognize, as did the trial judge, that there is a strong preference for lawsuits to be determined on the m......
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Hornblower v. Cobb
...motion to vacate the clerk's default. We review that order under an abuse of discretion standard. Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206, 207-08 (Fla. 2d DCA 1990). "Where there exists any reasonable doubt in the matter, and where there has been no trial on the merits, the tri......
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U.S. Bank Nat. Ass'n v. Lloyd
...under an abuse of discretion standard. Hornblower v. Cobb, 932 So.2d 402, 405 (Fla. 2d DCA 2006) (citing Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206, 207-08 (Fla. 2d DCA 1990)). Further, we apply the well-established principle preferring the decision of an action on its "Where ther......