Robbins v. Thompson
| Decision Date | 08 March 1974 |
| Docket Number | No. 72--267,72--267 |
| Citation | 291 So.2d 225 |
| Parties | M. I. ROBBINS, Appellant, v. Russell THOMPSON, Appellee. |
| Court | Florida District Court of Appeals |
John D. Kruse, Fort Lauderdale, for appellant.
Henry J. Prominski, Tucker, Roth, Prominski & Peschio, Pompano Beach, for appellee.
This is an appeal by M. I. Robbins, defendant below, from an order denying defendant's motion to set aside default and entering final judgment in favor of the plaintiff pursuant to such default.
The plaintiff moved for the entry of a default on the basis of defendant's failure to serve an answer or otherwise defend within the time prescribed by law. A default having been entered, the cause proceeded to trial. Defendant was present at the time set for trial and at that time filed his motion to vacate and a responsive pleading.
The general rule in respect to setting aside a default or a final judgment consequent thereon is that relief may be granted within the sound discretion of the trial court upon showing of the existence of a meritorious defense and a legal excuse for failure to comply with the rules. Florida Investment Enterprises, Inc. v. Kentucky Co., Fla.App.1964, 160 So.2d 733. The defendant has failed to demonstrate that the order denying defendant's motion to vacate on the basis of excusable neglect constituted an abuse of discretion. Smiles v. Young, Fla.App.1973, 271 So.2d 798; Farish v. Lum's, Inc., Fla.1972, 267 So.2d 325; 19 Fla.Jur. Judgments and Decrees, Sec. 459. Although the default deprived the defendant of the right to contest the existence of plaintiff's claim and his liability thereon, defendant still had the right to contest the amount of damages by way of the introduction of evidence in mitigation of them or by cross-examination. Stevenson v. Arnold, Fla.1971, 250 So.2d 270; Holder Turpentine Co. v. M. C. Kiser Co., 1914, 68 Fla. 312, 67 So. 85; Russ v. Gilbert, 1882, 19 Fla. 54. The reconstructed record of the proceedings below (the same not having been stenographically reported) reflects that the action of the trial court was of such nature as to preclude the defendant from participating at the trial on the issue of damages. 1
Accordingly, that portion of the final judgment determining the amount of damages is vacated and set aside and the cause remanded for further proceedings on the issue of damages. In all other respects the final judgment is affirmed.
Reversed, in part; affirmed, in part.
...
To continue reading
Request your trial
-
American Fidelity Fire Ins. Co. v. Woody's Elec. Service, Inc., 80-2198
...defendant is only responsible for those damages which were foreseeable or were proximately caused by his breach. See: Robbins v. Thompson, 291 So.2d 225 (Fla. 4th DCA 1974); Grappell v. Lauderdale River Park Estates, Inc., 126 So.2d 574 (Fla.3d DCA 1961); Russ v. Gilbert, 19 Fla. 54 (1882);......
-
Albertson v. Stark, 72--866
...v. Rubin, Fla.1970, 237 So.2d 134; General Portland Land Development Co. v. Stevens, Fla.App.1974, 291 So.2d 250; Robbins v. Thompson, Fla.App.1974, 291 So.2d 225. Although I would in no sense condone the conduct and statements complained of, I cannot categorize or characterize them as bein......
-
Garcia v. Delsardo
...damages. See, Eastern Koex Company, Ltd. v. Bonanza Import and Export, Inc., 360 So.2d 153 (Fla. 3d DCA 1978); Robbins v. Thompson, 291 So.2d 225 (Fla. 4th DCA 1974); 19 Fla.Jur., Judgments and Decrees, Sections 307 et seq. In Calhoun v. New Hampshire Insurance Company, 354 So.2d 882 (Fla.1......
-
The Florida Bar v. Porter
...default precludes a party from contesting the existence of the plaintiff's claim and liability thereon. See generally Robbins v. Thompson, 291 So.2d 225 (Fla. 4th DCA 1974). Thereafter, a party has the right to contest damages caused by the party's wrong but no other issue. Harless v. Kuhn,......