Osceola Farms Co. v. Sanchez
| Decision Date | 29 June 1970 |
| Docket Number | No. 69--402,69--402 |
| Citation | 238 So.2d 477 |
| Parties | OSCEOLA FARMS CO., Appellant, v. Gilberto SANCHEZ and Gustavo Catala, Appellees. |
| Court | Florida District Court of Appeals |
Joe N. Unger, Miami Beach, and Pomeroy, Seppi & Betts, West Palm Beach, for appellant.
Richard M. Gale and Gillotte & Fowler, Miami, for appellee Sanchez.
Appellant-defendant, Osceola Farms Co., a Florida corporation, appeals an order entered in favor of the appellee-plaintiff, Gilberto Sanchez, denying a motion to set aside a default and final judgment in an action for damages arising out of a tractorautomobile collision.
The plaintiff, Gilberto Sanchez, on July 29, 1966, instituted suit against the defendant, Osceola Farms Co., by filing a complaint which asserted negligence of the defendant by its agent, the defendant Gustavo Catala, in the operation of a tractor in a careless and reckless manner causing injuries to the plaintiff. The defendant, Gustavo Catala, was never served with summons and complaint. Service was perfected upon the defendant, Osceola Farms Co., on August 1, 1966, by serving the resident agent.
The complaint and summons served upon the defendant, Osceola Farms Co., was forwarded to its insurance carrier. An adjuster for the carrier asserted by way of affidavit that prior to August 10, 1966, he had agreed by telephone conversation with the attorney for the plaintiff that it would not be necessary to file responsive pleading until notified by plaintiff's attorney in writing. He further asserted that the agreement was confirmed by letter. Receipt of the letter from defendant's insurance carrier and the telephone conversation agreeing to delay the filing of responsive pleadings were denied by plaintiff's attorney.
On August 16, 1967, more than a year after the defendant was served with summons and complaint, the plaintiff filed praecipe for default judgment against the defendant, Osceola Farms Co., and default was duly entered against this defendant.
On December 5, 1967, plaintiff requested a trial date on the issue of damages, resulting in an order setting the cause for trial on December 28, 1967. By subsequent order of the trial judge, the trial date was changed from December 28, 1967 to March 13, 1968. No notice as to either of the trial dates as to the issue of damages was ever served on the defendant, Osceola Farms Co., its attorney, or any of its agents.
On March 19, 1968, after trial on the issue of unliquidated damages (sans defendant), the trial court entered a final judgment in favor of the plaintiff in the sum of $9,500. Approximately a year after the entry of the final judgment, the plaintiff sought execution thereon. The defendant filed motion to stay execution and motion to set aside default and final judgment.
The motion to set aside the default judgment asserted facts as to service of process as well as the agreement between defendant's agent and plaintiff's attorney concerning the asserted granting of delay in filing responsive pleadings to the complaint. The remaining allegations in the motion, in essence, assert that Osceola Farms Co., neither through its agent, insurer nor attorney, received notice to further plead as per the agreement with plaintiff's counsel, nor did it receive either motion or notice setting the cause for trial; that the defendant has a meritorious defense and is not guilty of any negligence; that it had been deprived of its day in court and right to jury trial; that it is entitled to be heard on the amount of unliquidated damages; that it demands trial by jury; that it wishes to question the failure of the complaint to state a cause of action; that it was not apprised of the default and final judgment by counsel for plaintiff until April 1969; that there was a question to be determined at the outset of the litigation as to whether plaintiff was entitled to workman's compensation, and that under such circumstances it was not unusual for a claimant to file one cause of action and leave it in abeyance until the compensation claim was determined; that the counsel for plaintiff knows or should have known that defendant was entitled to be heard on the question of unliquidated damages; and that the court entered a final judgment based upon a written medical report which required the court to speculate as to whether there would or would not be permanent disability.
In opposition to defendant's motion to set aside default and final judgment plaintiff's attorney filed affidavit stating that he never received the letter from the employee of the insurer and that he had never had a conversation over the telephone in which he agreed that it was not necessary for the defendant to file responsive pleadings.
Thereafter on June 3, 1969, the court entered an order denying defendant's motion to set aside the default and final judgment. Part of that order is as follows:
* * *'
The defendant petitioned for rehearing, asserting in essence that the final judgment entered by the court was void; that the court erred in accepting a medical report with vague terminology as a basis upon which to predicate the extent of personal injury damage; that defendant had neither notice nor opportunity afforded to it under the laws of Florida to defend itself on the question of unliquidated damages; and that the court was without statutory authority to enter a final judgment. Prior to disposition of the petition for rehearing, this appeal was taken from the order denying defendant's motion to set aside the default and final judgment.
Rule 1.540(b) R.C.P., 31 F.S.A., allows relief from final judgment, order or decree for the reasons vividly illustrated in the rule. The rule requires that if the reasons set forth in the motion are (1) mistake, inadvertence, surprise or an excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; or (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party, the motion be made within a reasonable time and not more than one year after the judgment, decree, order or proceeding was entered or taken. However, if the reason for the motion seeking relief from judgment is that the judgment or decree is void, the defendant is not required to attack it upon such ground within one year. Craven v. J. M. Fields, Inc., Fla.App.1969, 226 So.2d 407; 49 C.J.S., Judgments § 288 at 523; 30A Am.Jur., Judgments § 693 at 659; 154 A.L.R. 818, and Florida cases cited thereunder.
Since final judgment was entered against the defendant, Osceola Farms Co., on March 19, 1968, and their motion to set aside default and final judgment was filed on April 15, 1969, more than one year after the judgment was entered, the first determination for this court is whether the judgment herein is void making it amenable to a motion to vacate made more than one year after the judgment was entered. An examination of the motion by the defendant...
To continue reading
Request your trial
-
Gelkop v. Gelkop
...for lack of jurisdiction or proper due process notice, Saharuni v. Saharuni, 343 So.2d 674 (Fla. 2d DCA 1977); Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970); 7 Moore's Federal Practice § 60.25(2) (1979); Restatement of Judgments § 8, Comment c (1942); and that a contempt o......
-
Falkner v. Amerifirst Federal Sav. and Loan Ass'n
...or decree is void") shall be made within a reasonable time. 2 Moreover, as AmeriFirst asserts, the holding in Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970), supports its contention that the rule means what it says. It appears, however, that, Osceola aside, it is universall......
-
Quick & Reilly, Inc. v. Perlin
...Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980); Saharuni v. Saharuni, 343 So.2d 674 (Fla. 2d DCA 1977); Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970). Here, there was no allegation by Quick that the trial lacked jurisdiction or that proper service of process was not ef......
-
Jayre Inc. v. Wachovia Bank and Trust Co., N.A., 81-2199
...to set aside the default. Orthwein v. Cobbs Fruit & Preserving Company, 229 So.2d 607 (Fla. 1st DCA 1969); Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970). Fla.R.Jud.Admin. 2.060(g). We reverse the final judgment entered on the default, with directions to the trial judge to ......