13 Fla. L. Weekly Supp. 129a
Insurance — Personal injury protection — Default — Abuse of discretion to enter default, deny motion to set aside default and enter final judgment without conducting hearing — On remand, trial court may address dilatory conduct of insurer’s counsel if after conducting hearing it finds sanctions short of default are appropriate
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. RICHARD MAZLIN, D.C., P.A., a/a/o Julio Andrade, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 05-3758 (14). L.T. Case No. 04-18825(53). September 28, 2005. Counsel: Michael J. Neiman. Dean M. Viskovich.
[County court order published at 12 Fla. L. Weekly Supp. 495b.]
OPINION
(JEFFREY E. STREITFELD, J.) In this appeal from a Default Final Judgment, the record reflects that a default was improperly entered ex-parte and that the subsequent denial of Appellant’s Motion to Set Aside Default, and entry of Final Judgment constituted an abuse of discretion. Having reviewed the briefs and the record, this court sua sponte dispenses with oral argument.
It appears clear to me that this respected trial judge has had prior experiences with this Appellant that caused the trial court to prejudge the merits of the Appellant’s request for relief from entry of the default. However, Appellant was entitled to notice and an opportunity to be heard prior to the entry of the default, and was also entitled to a hearing on the merits of the Motion to Set Aside Default. If the credibility of Appellant’s Affidavit was to be called into question, then an evidentiary hearing was required. It appears that the trial judge, based upon prior cases involving this party, determined the merits of the factual position of the parties, without conducting a hearing of any kind.
The record reflects that Appellant acted in a reasonably expeditious manner upon learning of the trial court’s denial of its Motion for Extension of Time. The entry of a default, the subsequent denial of the Motion to Set Aside Default, and the entry of Final Judgment, all done without the benefit of hearing, therefore constituted a denial of due process and an abuse of discretion.
For these reasons, the Final Judgment is reversed and remanded with instructions to permit the filing of the proposed Answer and Affirmative Defenses. Upon remand, the trial court may address the allegedly dilatory conduct of counsel, if, after an evidentiary hearing, it finds that sanctions, short of the ultimate sanction of default, may be appropriate.
