T. I. E. Communications, Inc. v. Toyota Motors Center, Inc., 80-456

• Decision Date: 02 December 1980
• Docket Number: No. 80-456,80-456
• Citation: 391 So.2d 697
• Parties: T.I.E. COMMUNICATIONS, INC., Appellant, v. TOYOTA MOTORS CENTER, INC., a Florida Corporation a/k/a Expressway Toyota, Appellee.
• Court: Florida District Court of Appeals

Page 697

391 So.2d 697

T.I.E. COMMUNICATIONS, INC., Appellant, v. TOYOTA MOTORS CENTER, INC., a Florida Corporation a/k/a Expressway Toyota, Appellee.

No. 80-456.

District Court of Appeal of Florida, Third District.

Dec. 2, 1980.

Rehearing Denied Jan. 16, 1981.

Walters, Costanzo, Miller, Russell & Dittmar, Miami, for appellant.

Amy Shield Levine, George & Thompson, Miami, for appellee.

Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

We affirm the trial court's denial of the motion to vacate a default filed by T.I.E. Communications, Inc. and the final judgment in favor of Toyota Motors Center, Inc. upon a holding that the trial court was indisputably correct in refusing to vacate the default, where (a) default was entered more than a year after T.I.E. was served with the complaint; (b) Toyota's motion for default was filed only after written advice to T.I.E. that it intended to move for default unless T.I.E. responded to the complaint, which T.I.E. obdurately chose not to do ¹; (c) T.I.E.'s ore tenus motion to vacate the default was made on the date the trial was scheduled to commence, 140 days after the default was entered against it; and (d) T.I.E.'s motion, in the form of a statement by its trial counsel, even viewed most favorably to it, was no more than an admission of total disregard of the lawsuit on the part of T.I.E.'s house counsel.

It is quite obvious that T.I.E. did not show excusable neglect and was not entitled to have the default set aside. ² The Cricket Club, Inc. v. Basso, 384 So.2d 908 (Fla. 3d DCA 1980); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980); Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978). Moreover, an ore tenus motion made at trial is insufficient to vacate a default, Dade County v. Lambert, 334 So.2d 844 (Fla. 3d DCA 1976), and unsupported and undocumented representations of counsel regarding the failure of his client to respond are insufficient to justify setting aside the default. Williams v. Stack, 366 So.2d 872 (Fla. 4th DCA 1979).

Ordinarily, we would conclude our opinion here. We go on, however, to consider Toyota's request for an award of attorneys' fees on this appeal under Section 57.105, Florida Statutes (1979). That section provides:

"The court shall award a reasonable attorney's fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party." ³

It has been held that a "complete absence of a justiciable issue" is the equivalent of frivolousness. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). We agree with Allen that the statute should be so construed, since we are concerned that any less stringent predicate for the recovery of attorneys' fees would have a chilling effect on parties who, for example, may unsuccessfully attempt to raise questions of first impression and may deter the future growth of the law by exacting a price for today's unavailing efforts seeking its change. Having sounded this caveat to prevailing parties in general, we turn to the case at hand.

The appeal taken by T.I.E. has no saving grace. T.I.E.'s brief tells us, in essence, that it is the policy of Florida courts to exercise liberality in vacating defaults and to favor decisions on the merits, ⁴ that a predicate for a motion to set aside a default is excusable neglect, and that its neglect falls within the framework of Florida's decisional law. In our view, T.I.E.'s position on appeal...