Urbanek v. R.D. Schmaltz, Inc.

• Decision Date: 04 January 1991
• Docket Number: No. 90-0336,90-0336
• Citation: Urbanek v. R.D. Schmaltz, Inc., 573 So.2d 107, 16 Fla. L. Weekly 141 (Fla. App. 1991)
• Parties: 16 Fla. L. Weekly 141 Larry URBANEK and Josephine M. Beles, Appellants, v. R.D. SCHMALTZ, INC., Appellee.
• Court: Florida District Court of Appeals

Page 107

573 So.2d 107

16 Fla. L. Weekly 141

Larry URBANEK and Josephine M. Beles, Appellants, v.R.D. SCHMALTZ, INC., Appellee.

No. 90-0336.

District Court of Appeal of Florida Fourth District.

Jan. 4, 1991.

Ronald E. Jones of Ronald E. Jones, P.A., West Palm Beach, for appellants.

Richard D. Nadel of Nadel Associates, P.A., Palm Beach Gardens, for appellee.

HERSEY, Chief Judge.

Appellants Urbanek and Beles failed to appear for the scheduled taking of their depositions despite one rescheduling and being given additional time to make themselves available.The court granted a motion for sanctions in an order which provided that the "Defendants' defenses are stricken and a default judgment is entered against them."Thereafter, the court denied appellants' Motion for Relief From Order pursuant to rule 1.540,Florida Rules of Civil Procedure; that order of denial is appealed here.

Appellant Urbanek suggests that his conduct constituted "excusable neglect" as that term is used in rule 1.540(b) and explained in such cases as Mercer v. Raine, 443 So.2d 944(Fla.1983)andSomero v. Hendry Gen. Hosp., 467 So.2d 1103(Fla. 4th DCA), rev. denied sub nom., Hayslip v. Somero, 476 So.2d 674(1985).Here, although Urbanek knew that a trial date had been set, he was out of the state from May until August and never contacted his attorney during that period.

It is well established that parties who are properly before the court have an affirmative duty to monitor the litigation and to make themselves available at appropriate times.Efficient functioning of the judicial process requires no less.Unexcused inattention for a prolonged period is not excusable neglect.SeeFischer v. Barnett Bank of South Florida, N.A., 511 So.2d 1087(Fla. 3d DCA1987);Ferrante v. Waters, 383 So.2d 749(Fla. 4th DCA1980).

Appellant Beles explains her inattention as resulting from mental incapacity and inability to understand the trial proceedings and her required attendance at the deposition.This is a legally insufficient justification for ignoring judicial proceedings.John Crescent, Inc. v. Schwartz, 382 So.2d 383(Fla. 4th DCA), cert. denied, Peterson v. John Crescent, Inc. v. Belmont Holding Corp., 389 So.2d 1113(Fla.1980), mandamus granted, 401 So.2d 1150(Fla. 4th DCA1981), rev. denied, 412 So.2d 469(Fla.1982), declined to follow byJax Sani Serva Sys., Inc. v. Burkett, 509 So.2d 1251(Fla. 1st DCA1987).The Schwartz court stated:

The failure of a party to take the required steps necessary to protect its own interests, cannot, standing alone, be grounds to vacate judicially authorized acts to the detriment of other innocent parties.The law requires certain diligence of those subject to it, and this diligence cannot be lightly excused.The mere assertion by a party to a lawsuit that he does not comprehend the legal obligations attendant to service of process does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect to warrant the vacating of a final judgment.

Id. at 385-86(emphasis added).

The trial court did not abuse its discretion in denying the rule 1.540 Motion for Relief.There is, nonetheless, a defect in the proceedings which requires that we reverse.

The order on appeal provides as follows:

THIS CAUSE came on to be heard for an evidentiary hearing upon the motion for relief from order filed by the defendants, Larry Urbanek and Josephine M. Beles, pursuant to Florida Rule of Civil Procedure 1.540, to set aside a default judgment entered herein on July 24, 1989, and the court having heard the testimony of the witnesses and argument of counsel and being fully advised in the premises, it is thereupon

ORDERED AND ADJUDGED that the defendant's motion pursuant to Florida Rule of Civil Procedure 1.540 to set aside the judgment entered herein on July 24, 1989, be and the same is hereby denied.

The issue is whether or not an order granting a default must contain a written finding of willful disregard or deliberate violation of the discovery orders or whether such a finding contained in the transcript will be sufficient.Until recently the cases from this district could be interpreted as...