14 Fla. L. Weekly Supp. 631b
Insurance — Personal injury protection — Default — Vacation — Excusable neglect — Failure of attorney’s secretary to retrieve bailiff’s voice mail message advising that case would start that afternoon constitutes excusable neglect where neglect is that of secretary, not attorney, and secretary was assigned to work for three attorneys on day of trial
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. ALDO GONZALEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-448 AP. L.T. Case No. 05-16289 CC 05. May 10, 2007. An appeal from the County Court for Miami-Dade County, Catherine M. Pooler, Judge. Counsel: Lara J. Edelstein, for Appellant. Stuart B. Yanofsky, for Appellee.
(FRIEDMAN, CARDONNE ELY, JJ.) The default final judgment is reversed. The insurer/appellant was the defendant below on a claim for personal injury protection benefits. After the pleadings were closed, the Court set the case for jury trial for August 1, 2006, with a preceding calendar call on July 25, when both parties announced ready for trial. The case appears to have been the second one for trial on the calendar. From later affidavits in the file, it appears that the Court’s bailiff called the insurer’s office at 9:25 a.m. on August 2, and left a voice mail that the case would start that afternoon.
The appellant’s secretary did not retrieve the voice mail until after the case had proceeded to a non jury trial. Although there was no record of the proceeding, trial counsel admitted at the oral argument (upon a question from the bench) that instead of the scheduled jury trial, the case was in fact tried as a non jury. The Court rendered a judgment for $9,244.38, plus interest, and entitlement to attorneys’ fees, on August 2, 2006 at 4:12 p.m.
Only a couple of hours after the default judgment was rendered by the Court, the insurer discovered the voice mail message, and that same day, August 2, it filed an emergency motion to stay execution, and to vacate the default judgment (docketed August 2, 2006 at 6:11 p.m.) due to excusable neglect. The insurer filed an affidavit by the secretary who failed to retrieve the message explaining that she was in charge of the calendar of three attorneys that day and did not pick up the morning message from the bailiff, until the afternoon (R. 48). Insurer’s attorney, Lewis Robinson, also filed an affidavit that he had called the Court’s chambers on August 1 and was told that the lawyers were on standby status. (R. 46). A third affidavit, of another legal secretary supported the facts set out. (R. 50).
One of the attorneys of record below, Lissette de la Rosa, filed an affidavit stating that her office had been advised by the Court of “. . . the case that was ahead of us. At which time he was advised that we would be called and we were on standby.” (R. 51).
All of the affidavits in support of the insurer’s motion to vacate the default judgment were filed on the same day as the default: August 2, 2006. (R. 40-70). The Court denied the insurer’s motion to vacate default judgment and this appeal ensued.
This case unarguably meets two of the criteria for setting aside a default: a meritorious defense and due diligence in seeking relief. The insurer had filed an answer, with affirmative defenses (R. 13-14). Plaintiff’s complaint specifically requested “a jury trial” (R. 6). Yet, his trial counsel inexplicably, or perhaps not so inexplicably, waived the demand for a jury trial when the defendant failed to appear. Since this case is reversed on other grounds, the Court does not need to address the issue of impermissible waiver. Hornblower v. Cobb, 932 So.2d 402, (Fla.2nd DCA 2006); Art.I, Sec. 22, Fla. Constitution (“The right of trial by jury shall be secure to all and remain inviolate.”); Fla.R.Civ. 1.430(d), (a demand for jury trial may not be withdrawn unilaterally, without the consent of all parties).
The filing of the motions to stay execution and to vacate within two hours of the final judgment meets the criteria for due diligence.
The issue on appeal is whether the failure by a secretary to retrieve one voice mail message constitutes excusable neglect. This Court finds that it does. First, it is uncontroverted from the affidavits filed by appellant/insurer, that the neglect is not that of either attorney who was involved with the file. The neglect, unfortunately occurred with voice mail, (one of the most unreliable forms of modern communication), and a secretary who was assigned to work with three attorneys on the day of the trial. The affidavits of both attorneys, supported by the argument of Mr. Robinson at the hearing on the motion to vacate, evidence sincere apology and a lack of desire to disregard a Court order.
In Transworld Realty Corporation-Plantation v. Realty World Corporation, 507 So.2d 1201 (Fla. 4th DCA 1987), the appellant’s counsel dictated an answer and affirmative defenses, which were not filed by his secretary. The default was set aside by the appellate Court which held that:
. . . .where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits.
The Court cited several cases which also involved secretarial error:
Secretarial error has been held in numerous cases to constitute excusable neglect. In Florida Aviation Academy, Dewkat Aviation, Inc. v. Charter Air Center Inc., 449 So.2d 350 (Fla. 1st DCA 1984), failure to file a responsive pleading resulted from an inexperienced secretary’s failure to properly calendar the time for a response; in Travelers Insurance Company v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977), the attorney did not attend a hearing on a motion for a default because his secretary had not diaried the date on his calendar; in Quality Electric Service, Inc. v. Seymour Electric Supply Co., 487 So.2d 80 (Fla. 1st DCA 1986), the secretary placed the summons and complaint on the officer’s desk but the officer did not find them and a default was entered; and in Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983), the secretary inadvertently clipped the summons and complaint to the back of another file and placed it in a file cabinet without the knowledge of counsel. In each of the foregoing cases the court found excusable neglect sufficient to set aside a default.
This Court is fully aware of the volume of cases before lower trial Courts, as well as the relative speed in which trials get scheduled. Sometimes, it may save an appellate process to slow down and grant a re-hearing on a two hour proceeding, which was originally scheduled for a full jury calendar.
Reversed and remanded with instructions.
The appellee’s motion for attorneys’ fees is denied.
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(PLATZER, J., dissenting.)I respectfully dissent. I do not believe the Appellant/Insurer has established that the trial court abused its discretion in denying the Appellant’s Motion to Vacate Default and as such, I would affirm and grant the Appellee/Insured’s Motion for Attorney’s Fees.
We review this case under an abuse of discretion standard (See, Franklin v. Franklin, 573 So. 2d 401(Fla. 3d DCA 1991) (court must evaluate particular facts of case in which default was entered)). The recitation of facts as contained in the majority opinion is essentially correct. However, the majority overlooks additional facts which the trial judge relied upon in denying the Appellant’s motion. Those facts are essential to a proper evaluation of the trial court’s exercise of its discretion.
The parties were advised at calendar call on July 25th that they were on one hour stand-by for trial, behind one other case, during the trial week commencing August 1, 2006. The attorneys were also told that they would be called by the Judge’s office. The Judge’s office left a message for the Appellant’s attorney at 9:52 a.m., advising that the case would proceed to trial at 1:30 p.m. that day.
The court convened the trial at 1:30, almost four hours later. The Insured was present with counsel. The Insurer and counsel were not present. The court entered a Final Default Judgment.1 The Appellant claims that although its attorneys apparently called each other all day trying to determine when the trial would commence (T. 5-6), not one of them contacted the court from the time the court’s message was delivered at 9:52 a.m. until they determined at 3:25 p.m., by accident allegedly, that the default had been entered. In addition, secretaries from the Appellant’s attorneys’ office attested that they inadvertently discovered at 3:25 p.m. that the case was defaulted and thereafter retrieved the court’s message.
Neither the Appellant’s office staff nor Appellant’s trial lawyer, who were allegedly “waiting” to find out the trial time, attempted to contact the court in the morning or early afternoon to find out the status of the case. This, even though one of Appellant’s attorneys was advised, upon inquiry, that the case was going forward and trial counsel would be contacted by the Court.
The court heard the Appellant’s Motion to Vacate. The Appellee did not argue lack of due diligence or meritorious defenses, but instead argued exclusively that Appellant had failed to establish excusable neglect. At the hearing, Appellant acknowledged that the bailiff left a message twice with its office. (T. 5) The court determined that the Appellant’s explanation of events was “incredible”, that Appellant had not established excusable neglect, and denied the motion to vacate.2
The majority seems to dismiss this credibility finding, as evidenced by its analysis that the issue on appeal is whether the failure by a secretary to retrieve one voice mail message constitutes excusable neglect. The court below specifically made a finding that it did not believe the affidavits, a finding which we have no basis to disturb.
The salient issue is whether the failure of a party to stay in contact with the court, knowing that it was on one hour stand-by for trial, is excusable neglect. The onus in this case should not be on the trial court to make extraordinary efforts to find a party who is on stand-by for trial; rather, it should be placed on the party seeking to vacate a default judgment to have avoided the default in the first place by undertaking the obligation to monitor its messages and keep in contact with the court.
Even if the court had believed Appellant’s explanation, the failure of the secretary to monitor incoming messages or of counsel to contact the court does not rise to the level of excusable neglect. In Fischer v. Barnett Bank of South Florida, N.A., 511 So.2d 1087 (3rd DCA 1987), the court held that where defendants knew of the pending controversy and were leaving for a two-month vacation, their failure to have mail monitored with instructions on how to respond to a lawsuit constituted gross negligence and was inexcusable. The court held that the defendants had failed to meet the threshold requirement of excusable neglect necessary to require the setting aside a final default judgment.
In reviewing a trial court’s discretionary rulings, we should not substitute our judgment for that of the trier of fact. Nor should we reweigh the evidence or reassess credibility determinations:
In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.” See, Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980) at 1203.
It would defy reality to ignore the fact that the court below tries cases day in and day out involving not only the same issues involved in the instant case, but also involving the same party and its counsel. The court, having considered all relevant matters, made a finding that the Appellant’s explanation was not credible. Upon so finding, the court exercised its discretion and denied the Appellant’s motion.
In Delno v. Market Street Railway Company, 124F.2d 965, 967 (9th Cir. 1942), the court said: “Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable. . . .” Supra, Canakaris, at 1203. The court’s action in this case was clearly not “arbitrary, fanciful or unreasonable”. As such, I would affirm.
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1The majority raises the issue regarding whether or not a jury trial was held. In that there is no record of the proceedings below nor any motion to reconstruct the record, and the issue was not raised by the appellant in either the trial or appellate proceedings, it is not before us for consideration. See Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985) (in order to be preserved for further review by a higher court. . .the specific legal argument. . .to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”)
2In so finding, the court said: “It’s kind of incredulous to me that nobody listened to any of the messages for a period of some six hours. . . . The idea that nobody bothered to check or to look at the messages, I find that to be incredible. My problem is that there is(sic) a great number of United Automobile Insurance Company attorneys very often in this building. And I am one of the most accessible judges that you can ever find anywhere. . . .The idea that nobody bothered to check or to look a the messages, I find that to be incredible. Now, the only reason why we did not want people to come in the morning was to give people that little extra bit of time to get their witnesses together. I just find it to be incredible that nobody picked up the message, that nobody checked, and that nothing was done.” T. 19-21.
