Tutwiler Cadillac, Inc. v. Brockett

• Decision Date: 14 November 1989
• Docket Number: No. 89-944,89-944
• Parties: 14 Fla. L. Weekly 2627 TUTWILER CADILLAC, INC., a Florida corporation, Appellant, v. Schatzi S. BROCKETT, individually and as Personal Representative of the Estate of Craig A. Brockett, deceased, Appellee.
• Court: Florida District Court of Appeals

Page 1270

551 So.2d 1270

14 Fla. L. Weekly 2627

TUTWILER CADILLAC, INC., a Florida corporation, Appellant, v. Schatzi S. BROCKETT, individually and as Personal Representative of the Estate of Craig A. Brockett, deceased, Appellee.

No. 89-944.

District Court of Appeal of Florida First District.

Nov. 14, 1989.

Calvin E. Hayden and Tonia Yazgi of Kent, Hayden, Facciolo & McMorrow, P.A., Jacksonville, for appellant.

Gary C. Pajcic and Michael B. Wedner of Pajcic & Pajcic, P.A., Jacksonville, for appellee.

BOOTH, Judge.

This cause is before us on appeal of the trial court's denial of motion to set aside default judgment.

On November 30, 1988, appellee Schatzi Brockett filed a complaint against General Motors (GM) and appellant Tutwiler Cadillac, Inc., alleging strict liability, negligence, and breach of expressed and implied warranties of merchantability, and seeking damages arising from the defendants' manufacture and sale of a vehicle with a defective and unsafe seat belt mechanism which allegedly caused her husband's death. On December 7, 1988, the complaint, together with a summons, was served on appellant by serving Warren C. Tutwiler, the registered agent and president of the corporation. The responsive pleading was due on December 27, 1988.

Mr. Tutwiler assigned the complaint to Joseph Abood, appellant's service manager, a nonlawyer, who sent the summons and complaint along with an indemnification request to GM but did not hear back from GM until after the time for filing the answer had expired and default had been entered. Although he telephoned the GM office in West Palm Beach on December 12, 1988 and January 3, 1989, GM's West Palm Beach representatives advised him that they had not received a reply from GM regarding the assumption of Tutwiler's defense. The default was entered on January 5, 1989. The next day, Mr. Abood received a letter from GM denying the indemnification request, and he immediately attempted to contact GM, appellee's attorney, and appellant's carrier.

On January 18, 1989, appellant filed an answer with affirmative defenses. Appellee filed a motion to strike the answer based on the default, and appellant filed a motion to set aside the default. After a hearing, the trial judge entered orders denying the motion to set aside default and granting appellee's motion to strike appellant's answer and defenses. Appellee subsequently filed an amended complaint.

On appeal of the orders, appellant contends the trial court abused its discretion in failing to set aside the clerk's default based on appellant's excusable neglect, the errors in the original complaint, and the lack of prejudice which resulted from appellant's late filing of its answer. We agree with appellant's contentions.

Florida courts have a policy of liberality toward vacating defaults and allowing trial on the merits. In Zimmerman v. Vinylgrain Industries of Jacksonville, Inc., 464 So.2d 1353, 1354 (Fla. 1st DCA 1985), this court held Although an abuse of discretion is necessary in order to reverse a trial court's ruling on a motion to vacate default, appellate courts need not find as great a showing of abuse to reverse a trial court's denial of a motion to vacate default as they do to reverse a grant of such a motion.

To like effect are the decisions in Ponderosa, Inc. v. Stephens, 539 So.2d 1162, 1163 (Fla. 2d DCA 1989), Finkel Outdoor Products, Inc. v. Lasky, 529 So.2d 317, 318 (Fla. 2d DCA 1988), and Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137, 1138 (Fla. 2d DCA 1977). Where there is any reasonable doubt in the matter of vacating a default, it should be resolved in favor of granting the application and...