Winky's Inc. v. Francis

• Decision Date: 30 December 1969
• Docket Number: No. 69--451,69--451
• Citation: 229 So.2d 903
• Parties: WINKY'S, INC., Appellant, v. Ivy M. FRANCIS, Appellee.
• Court: Florida District Court of Appeals

Page 903

229 So.2d 903

WINKY'S, INC., Appellant, v. Ivy M. FRANCIS, Appellee.

No. 69--451.

District Court of Appeal of Florida, Third District.

Dec. 30, 1969.

Rehearing Denied Jan. 26, 1970.

Rose & Marlow and George C. Vogelsang, Miami, for appellant.

Markus, Winter & Spitale, Pozen, Gold & Gold, Miami, for appellee.

Before PEARSON, C.J., and HENDRY and SWANN, JJ.

PEARSON, Chief Judge.

This is an appeal by the defendant below from a final judgment and order denying its motion to set aside a default and final judgment. The trial judge made the following findings of fact:

'THIS CAUSE having come on to be heard before me this day on the Defendant's Motion to Set Aside Default Judgment and Final Judgment and the Court having heard testimony of the witness, MAX KRIEGER, as resident agent of Winky's Inc., and CHARLES W. McCONNELL, deputy sheriff, and its appearing to the Court after having heard said testimony that Winky's Inc. was, in fact, properly served the Summons and Complaint in this cause by and through the sheriff of Dade County, Florida; and the Court relying on Rule 1.500 for the time of setting of trial, and the Court finding that the Defendant by its own negligence failed to defend the suit filed herein and that there was no excusable neglect; and the Court having heard argument of Counsel for Plaintiff and the Defendant; and the Court being otherwise fully advised in the premises, it is:

'ORDERED AND ADJUDGED

1. That the Defendant's Motion to Set Aside Default Judgment and Final Judgment be and the same is hereby denied * * *.'

The appellant presents two points on appeal. I. Did the court err in failing to set aside a default judgment when the defendant's resident agent testified he was not served with the complaint? II. Did the court err in conducting and setting a trial only three days after a notice of trial was filed?

The appellee filed suit against the appellant on January 21, 1969, alleging that she was injured when she slipped and fell on the floor of appellant's supermarket and that the negligence of the appellant was the proximate cause of her injuries. The summons was issued on January 21, 1969, and filed for record January 29, 1969. The sheriff's return shows that service of process was made on January 24, 1969, by delivering a copy of the summons and complaint to 'Mr. M. Kerieger Res. Agt., IN THE ABSENCE OF: Pres., v. Pres., Cashier, Treas., Secy., Gen. Mgr., Dir., and all other heads * * *.'

On March 3, 1969, the appellee filed a motion for default, and default was entered by the clerk on March 4, 1969. Appellee filed a notice of trial on March 24, 1969, setting trial for March 27, 1969. The notice of trial recites that a copy of the notice was furnished to the appellant on March 19, 1969. On April 2, 1969, a final judgment awarding the appellee $2,000.00 and $187.15 costs was filed.

The appellant filed its motion to set aside the default and the final judgment on May 7, 1969. In support of the motion appellant filed an affidavit of Max Krieger, its vice-president and resident agent, in which Krieger categorically stated that he was never served with process and that as an experienced businessman he would have notified his insurance company if he had been served. ¹

The trial judge held an evidentiary hearing at which the only witnesses were Krieger and McConnell, the deputy sheriff who made the return of service. Krieger denied that he had been served and denied any knowledge of the lawsuit until receipt of the notice of trial. McConnell testified that although Krieger looked familiar he had no independent recollection of serving Krieger.

His testimony that he had served Krieger was based on the return and the service sheet. The trial judge was presented with an issue of fact. He found that '* * * By virtue of the fact that the Deputy Sheriff says he went to the place of business, was told who Mr. Krieger was and served that individual, on the face of it, proper service was had.'

Two arguments are presented under Point I. Appellant contends first that it was not served because its resident agent was not served and therefore the trial court had no jurisdiction over the appellant. We agree that whether the trial court obtained jurisdiction over the appellant depends on whether Krieger was served. Whether Krieger was served is a question of fact. Our decision concerning the trial court's resolution of that question of fact must be governed by the rules concerning the validity of a return of service. A party attacking the validity of a return has the burden of substantiating the claim that the return is false, and the trial court must weigh and resolve any conflicts in the evidence on this point. McIntosh v. Wibbeler, Fla.1958, 106 So.2d 195. Although the majority of the court in the cited case decided that the return should not be sustained because it was false, the law set forth is clear. Krieger's uncorroborated testimony that he did not receive process was not sufficient to meet the burden set forth in the McIntosh case. That testimony was not clear and convincing evidence sufficient to impeach the sheriff's return. See Clements Naval Stores Co. v. J. S. Betts Co., 85 Fla. 49, 95 So. 126 (1923).

The appellant urges next that if Krieger was served, we should decide this appeal in accordance with the precedent of cases holding that a trial judge has a great discretion in setting aside defaults in order to achieve a trial upon the merits. See, e.g., North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849; Florida Investment Enterprises, Inc. v. Kentucky Co., Fla.App.1964, 160 So.2d 733. However, before a trial judge may vacate a default, a corporate defendant must allege and prove excusable neglect of an officer or agent. Winter Park Arms, Inc. v. Arkerman, Fla.App.1967, 199 So.2d 107, 109. Here the appellant made neither allegations nor proof of excusable neglect. Krieger's affidavit and testimony at the hearing on appellant's motion to set aside default were directed towards the issue of jurisdiction (validity of the return of service)--not the issue of excusable neglect. Since there was no allegation or proof of excusable neglect there was no abuse of discretion in the trial judge's denial of appellant's motion to set aside the default. We conclude that the appellant has not demonstrated error under its first point.

Appellant's second point urges only that the court was required to set a trial date not less than 30 days after the entry of default. It relies upon Rule 1.440(c), Florida Rules of Civil Procedure, 30 F.S.A. ² This point overlooks Rule 1.500(e), Florida Rules of Civil Procedure, 31 F.S.A. ³ Neither Rule 1.500(e) nor its predecessors deprives a defaulting defendant of the right to be accorded an opportunity to be heard on the issue of damages where the damages are unliquidated. This court has repeatedly reversed judgments entered pursuant to defaults if the defaulting defendant is not notified that the issue of unliquidated damages is to be tried. See Pan American World Airways, Inc. v. Gregory, Fla.App.1957, 96 So.2d 669; Hurst v. Federal Screen Supply Co., Fla.App.1962, 142 So.2d 151; Harbour Tower Develop. Corp. v. Seaboard Equip. Co., Fla.App.1965, 179 So.2d 405; Carroll's, Inc. v. De Barros, Fla.App.1966, 182 So.2d 49; Lawn v. Wasserman, Fla.App.1969, 226 So.2d 261. In Lawn v. Wasserman we quoted portions of Rule 1.440(c). Those portions are another way of stating the rule concerning the necessity of notifying a defaulting defendant of trial on the issue of unliquidated damages; they should not be construed as a holding that the 30 day provision of Rule 1.440(c) is applicable to defaults. It is our opinion that this provision is not applicable to defaults. Although Rule 1.500(e) provides that '(f)inal judgments after default may be entered by the Court at any time,' it is our opinion that the word 'reasonable' implicitly precedes 'time', else the right we outlined in the immediately preceding cases would be an empty right.

In the present case the record shows that the appellant on March 19, 1969, received notice that trial would be held on March 27, 1969. We think the appellant received notice of trial a reasonable time before it was to be held and therefore was accorded an opportunity to be heard on the issue of the unliquidated damages sought by the appellee. We conclude that the appellant has not demonstrated error under it second point.

The judgment is affirmed.

HENDRY, Judge (dissenting).

I respectfully dissent. This is an appeal by the defendant below from a final judgment and order denying its motion to set aside a default and final judgment.

The germane facts are set forth in the majority opinion. As can readily be seen, the only issue before the trial judge at the hearing on the appellant's motions to set aside the default and final judgment, was whether or not Deputy Sheriff McConnell had actually served process on the appellant. According to the appellant's officer in charge, Max Krieger, no process was served either upon him personally or upon any of the staff at his office. McConnell's position was that although he had no specific recollection of serving Mr. Krieger, his service sheet indicated that service had been effected. ¹

In the case cited by the majority, McIntosh v. Wibbeler, Fla.1958, 106 So.2d 195, the question reviewed before the Supreme Court was whether the trial court had erred when it sustained service of process on facts...