Wentnick v. European American Bank and Trust Co.

• Court: Florida District Court of Appeals
• Writing for the Court: DELL
• Citation: Wentnick v. European American Bank and Trust Co., 487 So.2d 382, 11 Fla. L. Weekly 957 (Fla. App. 1986)
• Decision Date: 23 April 1986
• Docket Number: No. 85-2287,85-2287
• Parties: 11 Fla. L. Weekly 957 Alan WENTNICK, Appellant, v. EUROPEAN AMERICAN BANK AND TRUST COMPANY, Appellee.

Page 382

487 So.2d 382

11 Fla. L. Weekly 957

Alan WENTNICK, Appellant, v. EUROPEAN AMERICAN BANK AND TRUST COMPANY, Appellee.

No. 85-2287.

District Court of Appeal of Florida Fourth District.

April 23, 1986.

Michael J. McNerney and Linda R. Spaulding, of Brinkley, McNerney & Morgan, Fort Lauderdale, for appellant.

Robin Corwin Campbell, of Kopelowitz, Atlas, Pearlman & Trop, P.A., Fort Lauderdale, for appellee.

DELL, Judge.

Appellant Alan Wentnick (Wentnick) seeks relief from a default judgment entered against him in the amount of $30,000 plus interest.

Appellee European American Bank and Trust Company (European) filed suit against Marvin Moskowitz to domesticate a New York judgment for the sum of $576,346.02. On September 24, 1984 the trial court entered a final judgment in favor of European for the above amount. In an effort to collect its judgment European filed a motion for garnishment after judgment stating that Caseric Corporation held money or other property owed to or belonging to Moskowitz. On February 12, 1985 the Broward County Clerk issued a writ of garnishment upon Caseric Corporation which was served on its president, Wentnick. Wentnick delivered the writ to Caseric's attorney who filed an answer on February 22, 1985 stating that Caseric was not indebted to Moskowitz.

European deposed Moskowitz. Moskowitz testified that he loaned Wentnick $30,000 in the spring of 1984 with no promissory note. He alleged that Wentnick agreed to pay $10,000 interest on this loan within a month. He also testified that Caseric Corporation held proceeds related to certain property in Palm Beach County. Following the deposition, European filed two motions for garnishment after judgment, one directed to Caseric Corporation and one directed to "Alan Wentnick, Caseric Corporation." The clerk issued the two writs of garnishment and on March 14, 1985 Wentnick received service of the writs at the corporate office. ¹ Wentnick did not answer either of the writs. On April 17, 1985 European moved for, and the clerk entered, a default against Wentnick for failure to serve an answer to the writ of garnishment. On May 8th, 1985 European filed its motion for final default judgment against Wentnick and Caseric Corporation but did not serve them with a copy of the motion. Since Caseric Corporation had appeared in the action by filing an answer to the original writ of garnishment, European should have served it with notice of the application for a default. European did not do this, but rather served Moskowitz, the defendant in the initial lawsuit. Thus Wentnick had no notice of the default proceedings either through the corporation or personally.

The court conducted a hearing and entered a final default judgment in favor of European and against Wentnick for the sum of $30,000 plus interest. In July, Wentnick accidentally discovered the judgment against him. The next day he contacted an attorney who, on July 17, 1985, filed a motion to set aside the default and final default judgment. Wentnick, in his verified motion to vacate the default judgment, stated that due to the multiplicity of the writs of garnishment, he had no notice that a writ of garnishment had been issued against him individually. The trial court denied his motion and this appeal follows.

We reverse. Florida courts liberally set aside defaults so that controversies may be decided on their merits. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). Before a default may be vacated, a party must...