Somero v. Hendry General Hosp.

• Decision Date: 01 May 1985
• Docket Number: 82-1824 and 83-822,Nos. 82-1645,s. 82-1645
• Citation: 10 Fla. L. Weekly 1100,467 So.2d 1103
• Parties: 10 Fla. L. Weekly 1100 Glenna SOMERO and Robert Somero, her husband, Appellants, v. HENDRY GENERAL HOSPITAL, Dr. James Forbes, Dr. Gordon Hayslip, Good Samaritan Hospital and Florida Patient's Compensation Fund, Appellees.
• Court: Florida District Court of Appeals

Page 1103

467 So.2d 1103

10 Fla. L. Weekly 1100

Glenna SOMERO and Robert Somero, her husband, Appellants, v. HENDRY GENERAL HOSPITAL, Dr. James Forbes, Dr. Gordon Hayslip, Good Samaritan Hospital and Florida Patient's Compensation Fund, Appellees.

Nos. 82-1645, 82-1824 and 83-822.

District Court of Appeal of Florida,

Fourth District.

May 1, 1985.

Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, Dale P. Redlich, Fort Lauderdale, Jerry I. Meyers, Pittsburgh, Pa., and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellants.

Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellee Dr. Gordon Hayslip.

ON REHEARING

PER CURIAM.

We are asked to review an order dismissing appellants' action for failure to timely seek substitution of a deceased defendant's personal representative as a party in the case and an order denying a motion to set aside the order of dismissal.

In October 1979 Somero brought suit against Dr. Hayslip, Dr. Forbes, Hendry General Hospital, and Good Samaritan Hospital, for damages allegedly occurring from the negligent failure to diagnose a spinal injury. On December 22, 1981, Dr. Hayslip died and Dr. Hayslip's attorney (Flanagan) so advised Somero's attorney (Redlich). A suggestion of death was filed by attorney Flanagan on December 29, 1981. Additionally, in response to a request by Redlich, Flanagan inquired of the estate's lawyers for the name of the estate's personal representative, responding to Redlich on January 18, 1982, and attaching the estate's lawyers' response to Flanagan's inquiry. On May 28, 1982, Flanagan filed a motion to dismiss the complaint against Dr. Hayslip for failure to move for substitution within the ninety-day period required by rule 1.260(a)(1), Florida Rules of Civil Procedure. The motion was granted on July 2, 1982.

Plaintiffs thereafter filed a motion to set aside the order of dismissal under rule 1.540(b), Florida Rules of Civil Procedure. That motion came on for hearing in due course. The following summary of so much of those proceedings as appears relevant to a determination of the issue on appeal is extracted and paraphrased from the brief of appellee, Hayslip. At that hearing plaintiffs' Florida counsel, Redlich, testified that when he received Flanagan's letter of January 18, 1982, which merely enclosed a letter from the attorney for the estate, "the impression he had at that point was that they had a stipulation." He anticipated that substitution of the personal representative would be handled by stipulation; however, he never prepared one, nor did he ever ask Flanagan to sign one. He admitted he never called Flanagan and never asked whether they had a stipulation for substitution. He conceded that Flanagan never told him they had a stipulation. Indeed, he admitted that they never discussed a stipulation. He just assumed they had an agreement.

Redlich admitted that he never called the attorney for the estate and never asked whether Anna Hayslip had been appointed as personal representative. His "impression" was that Flanagan would tell him when the personal representative was appointed. He just "assumed" that Flanagan would tell him this. He said he "possibly" expected Flanagan to prepare a stipulation. Redlich denied that he had simply forgotten the matter, but admitted he had not made any diary notation.

The issue on appeal is whether the failure to move for substitution resulted from excusable neglect within the contemplation of rule 1.540(b), Florida Rules of Civil Procedure, and, if so, whether refusal to set aside the dismissal constituted an abuse of discretion.

It is axiomatic that Florida jurisprudence favors liberality in the area of setting aside defaults in order that parties may have their controversies decided on the merits. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). In the North Shore case the court also stated, however, that "a showing of gross abuse of a trial court's discretion is necessary on appeal to justify reversal of the lower court's ruling on a motion to vacate." Id. at 852 (emphasis deleted). For this proposition the court referred to precedent. In the first case cited, Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9 (1942), the supreme court held that the test was gross abuse of discretion and reversed the trial court's entry of a default where a pleading was late for having been filed in the wrong court. The second case cited as authority was Coggin v. Morris, 150 Fla. 555, 8 So.2d 11 (1942), and that court simply reversed on the authority of the first case. We deem it significant that North Shore involved an order of the trial court setting aside a default rather than one refusing to do so.

Subsequent cases have rather consistently applied these principles. The court in Florida Aviation Academy, Dewkat Aviation, Inc. v. Charter Air Center, Inc., 449 So.2d 350 (Fla. 1st DCA 1984), reversed the trial court's refusal to set aside a default where the failure to timely file a pleading resulted from an inexperienced secretary's failure to properly calendar the time for response. The court recognized the tension between the policy of liberality in setting aside defaults and the requirement that a gross abuse of discretion be shown in order to reverse the trial court's action on a motion to vacate. It also indicated that the appellate courts have different approaches to the problem, concluding: "[W]e prefer to follow that line of cases recognizing an avenue of relief is available to the defaulted party in those instances in which clerical or secretarial error has been demonstrated, and the presence of substantial prejudice to the opposing party is lacking." Id. at 353 (citation omitted).

Again in Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983), the trial court was reversed for refusing to set aside a default where the summons and complaint had inadvertently been clipped to the back of a file and replaced in the filing cabinet.

In Schmitz v. Ryan, 427 So.2d 1013 (Fla. 2d DCA 1983), a default based upon failure to make discovery was reversed upon a finding that the defaulted party, "a German citizen located in Germany," may not have been aware of his obligations to make discovery nor was it clear to what extent he "complied or was able to comply with those obligations; ...." Id. at 1015.

See also Brandt v. Dolman, 421 So.2d 689 (Fla. 4th DCA 1982) (where corporate counsel filed answer for corporation but inadvertently failed to file a pleading for another individual defendant, trial court's refusal to set aside default would be reversed).

The cases cited to illustrate findings of excusable neglect are just that: illustrative, since more than one hundred cases involving the setting aside of defaults have been decided by Florida courts within a recent five-year period.

Representing the other side of the coin, the neglect in the following cases was found to have been inexcusable.

The fact that appellant was a fugitive from justice and that he...