19 Fla. L. Weekly Supp. 974a
Online Reference: FLWSUPP 1912DOMIInsurance — Default — Vacation — Abuse of discretion to refuse to set aside defaults and default final judgments — Calendering error by legal assistant to insurer’s counsel constituted excusable neglect — Trial court also erred in entering default final judgments without holding jury trial on damages and in awarding attorney’s fees and costs without holding evidentiary hearing
MGA INSURANCE COMPANY, INC., Appellant, vs. DOMINICK CHIROPRACTIC CLINIC, a/a/o ERICA GROSS and a/a/o MARLO DUBOSE, Appellee. Circuit Court, 1st Judicial Circuit (Appellate) in and for Escambia County. Case No. 10-AP-66, Division C. L.C. Case Nos. 10-CC-27413; 10-CC-2768, Division V. July 25, 2012. On Appeal from the County Court for Escambia County. Honorable Patricia A. Kinsey, Judge. Counsel: Carlos D. Cabrera, Hinda Klein, and Karen E. Berger, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., Hollywood, for Appellant. Michael S. Burtt and Brian P. Scanlon, Michael S. Burtt, P.A., Pensacola, for Appellee.
ORDER
(NOBLES, Judge.) Appellant appeals the trial court’s final judgments, issued September 13, 2010, and orders denying Appellant’s motions to vacate those judgments, issued December 7, 2010. The Court, having reviewed the records on appeal, the briefs of the parties, and the relevant legal authority, finds
as follows:
On July 12, 2010, Appellee filed its complaints against Appellant. On July 29, 2010, Appellant was served. On August 17, 2010, Appellant retained counsel and forwarded its files to counsel. That same day, counsel’s legal assistant opened the files. She did not calendar response dates for the complaints because she mistakenly believed they were Small Claims Court proceedings which required no responsive pleadings.
On September 7, 2010, Appellee moved for and received Clerk’s defaults. The next day, Appellee filed motions seeking default final judgments. On September 13, 2010, the trial court granted Appellee’s motions, awarding it damages, attorneys’ fees and costs.
On September 21, 2010, Appellant learned of the judgments. Two days later, it moved to vacate the defaults and the judgments. On November 10, 2010, a hearing was held on Appellant’s motions. On December 7, 2010, the trial court denied the motions finding that the neglect was inexcusable. On November 15, 2010, Appellant timely filed notices of appeal.
Appellant first argues that the trial court erred by failing to find that the calendaring errors by its counsel’s legal assistant constituted excusable neglect. In support of its position, Appellant relies on 205 Jacksonville, LLC v. A-Affordable Air LLC, 16 So. 3d 974 (Fla. 3rd DCA 2009) [34 Fla. L. Weekly D1750a].
Appellee asserts that the conduct of both Appellant and its counsel went beyond excusable neglect, rising to the level of gross negligence. Consequently, pursuant to Winter Park Arms, Inc. v. Akerman, 199 So. 2d 107 (Fla. 4th DCA 1967) and Otero v. Government Employees Insurance Co., 606 So. 2d 443 (Fla. 2d DCA 1992), Appellant is barred from relief.
The Court finds that Winter Park and Otero are distinguishable. In Winter Park, the president of the corporation was properly served the initial pleading, yet took no action to hire counsel or defend the case. Moreover, he offered no excuse to the court for his inaction. In Otero, the corporation was properly served the initial pleading, yet took no action to forward the file to its counsel or defend the case. Over the next eight months, despite being served with numerous legal pleadings, including the court’s order setting pretrial conference, order setting cause for jury trial, order on the pretrial conference, and final judgment, it took no action. Even after the corporation received the final judgment, two months elapsed before it sought relief. As in Winter Park, the corporation offered no excuse to the court for its inaction.
It appears to the Court that Appellant’s motions were well-founded in fact and supported by the law. Hence, the trial court’s refusal to set aside the defaults and the default final judgments was an abuse of discretion.
Although mooted by the Court’s ruling on Appellant’s first argument, the Court also finds that Appellant’s second argument, that the trial court erred in entering the default final judgments without holding jury trials on damages, has merit. See Fla. R. Civ. P. 1.430. Likewise, Appellant’s third argument, that the trial court erred in awarding attorneys’ fees and costs without holding evidentiary hearings, has merit. See Roggemann v. Boston Safe Deposit & Trust Co., 670 So. 2d 1073 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D706a]; see also Morton v. Heathcock, 913 So. 2d 662 (Fla. 3rd DCA 2005) [30 Fla. L. Weekly D2163a].
Accordingly, the Court REVERSES the trial court’s entry of the final judgments, issued September 13, 2010, and the orders denying Appellant’s motions to set aside those judgments, issued December 7, 2010. The Court REMANDS with directions to the trial court to vacate the defaults, entered September 7, 2010, and fix a reasonable time for Appellant to file responsive pleadings.
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