Westinghouse Credit Corp. v. Steven Lake Masonry, Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: LETTS; ALDERMAN, C. J., and CROSS
• Citation: Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. App. 1978)
• Decision Date: 04 April 1978
• Docket Number: No. 77-2172,77-2172
• Parties: WESTINGHOUSE CREDIT CORPORATION, a foreign corporation, Appellant, v. STEVEN LAKE MASONRY, INC., Steven A. Lake and Dolores Lake, Appellees.

Page 1329

356 So.2d 1329

WESTINGHOUSE CREDIT CORPORATION, a foreign corporation, Appellant, v. STEVEN LAKE MASONRY, INC., Steven A. Lake and Dolores Lake, Appellees.

No. 77-2172.

District Court of Appeal of Florida, Fourth District.

April 4, 1978.

James E. Foster of Fishback, Davis, Dominick & Simonet, Orlando, for appellant.

John W. Bowen of Rowland, Petrucka & Bowen, Orlando, for appellees.

LETTS, Judge.

This case involves the trial court's setting aside of a final judgment entered after default. We find no excusable neglect and reverse.

The problem presented is a veritable mine field for trial judges, for it appears that whatever they do, the appellate court reverses. We agree that in such situations the trier of the fact should have wide discretion, which must be grossly abused to deserve reversal. This theory is further buttressed by the long standing policy of liberality towards the vacation of defaults, so that the merits of a cause may be reached, North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977).

Yet there are two areas where the courts have consistently upheld defaults and both are factors in this case.

First, failure of the attorney to act with no good reason given, Sun Finance Corp. v. Friend, 139 So.2d 484 (Fla. 3rd DCA 1962).

Second, failure to immediately react upon learning of the default. In Re Aston, 245 So.2d 674 (Fla. 4th DCA 1971).

In this case the defendants below turned over the served complaint to a lawyer who inexplicably failed to do anything and justified his inaction by reporting a "disappearance" of the pleadings. ¹ Upon learning of this bizarre conduct, some four weeks after three copies of the complaint were served, the defendants waited a further 7 weeks before attempting to vacate, which was also some 30 days after receipt of a copy of the final judgment.

This case is analogous to Allen v. Wright, 350 So.2d 111 (Fla. 1st DCA 1977) in which the defendant labored under the misapprehension that his insurer would defend him and additionally did nothing for over 50 days after notice of default. Notwithstanding the court held that failure of the insurer to defend was not "supportive of any theory of excusable neglect" and further that the defendant did not proceed with all possible dispatch upon becoming aware of the default.

Similar results have been reached in Bailey v. Deebold, 351 So.2d 355 (Fla. 2nd DCA 1977) and Sun Finance Corp. v. Friend, 139 So.2d 484 (Fla. 3rd DCA 1962).

The...