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Filing # 176376652 E-Filed 06/28/2023 04:10:46 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
VENISSA DRIGGERS, as Personal Representative of
the Estate of DAVID B. FLICK, Deceased, CASE NO. 21-CA-410
Plaintiffs,
vs.
MARK BARCIA, HOOTERS OF PORT CHARLOTTE,
INC., BWR NORTH PORT, LLC d/b/a BUFFALO
WINGS AND RINGS, ATLANTA RESTAURANT
PARTNERS, LLC d/b/a TGI FRIDAYS, and
JACKMONT HOSPITALITY, INC. d/b/a TGI FRIDAYS,
Defendants.
/
PLAINTIFF’S NOTICE OF FILING SUPPLEMENTAL AUTHORITY IN OPPOSITION TO DEFENDANT,
HOOTERS OF PORT CHARLOTTE, INC.’S, AMENDED MOTION FOR RELIEF FROM, AND TO
VACATE, FINAL JUDGMENT
Plaintiff, VENISSA DRIGGERS, as Personal Representative of the Estate of DAVID B. FLICK,
Deceased, hereby gives notice that Plaintiff has filed the following attached supplemental case law
authority in opposition to Defendant, Hooters of Port Charlotte, Inc.’s Amended Motion for Relief
from, and to Vacate, Final, Judgment (in addition to the authorities previously cited in Plaintiff’s
Memorandum of Law in Opposition), for use at the evidentiary hearing on said Motion on June 30,
2023, and for any other purpose:
1 Chernoff Diamond & Co., LLC v. Gallin Associates, Inc., 258 So. 3d 563 (Fla. 2nd
DCA 2018)
2. Trinka v. Struna, 913 So. 2d 626 (Fla. 4th DCA 2005)
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail on the 28th
day of June, 2023, to T.R. Unice, Jr., Esq., Unice Salzman Jensen, P.A., SouthState Bank Building,
Seconf Floor 1815 Little Road, Trinity, FL 34655; Michael Rubin, Esq. and Joshua W. Brankamp,
Esq.., Ritter Chusid, LLP, 5850 Coral Ridge Dr., Ste. 201, Coral Springs, FL 33076.
SPIVEY LAW FIRM
PERSONAL INJURY ATTORNEYS, P.A.
13400 Parker Commons Boulevard
Fort Myers, FL 33912
Phone: (239) 337-7483
Fax: (239) 337-7484
By
My
RANDALL L. SPIVEY
Florida Bar No. 0064742
Chernoff Diamond & Co., LLC v. Gallin Associates, Inc., 258 So.3d 563 (2018)
43 Fla. L. Weekly D2541
(3) that it acted with due diligence in seeking
258 So.3d 563 telief from the default.
District Court of Appeal of Florida, Second District.
CHERNOFF DIAMOND B] Judgment @ Mistake, surprise, or excusable
neglect in general
& CO., LLC, Appellant,
Respondent was not entitled to set aside default
Vv.
judgment based on excusable neglect, where
GALLIN ASSOCIATES, INC., d/ respondent's president was served with the
b/a Gallin Associates, Appellee. complaint, knew he had to respond, yet he put
the complaint and summons in a drawer, left for
Case No. 2D 18-1891 vacation, and forgot about the lawsuit until he
| received notice of entry of a final judgment.
Opinion filed November 14, 2018
Synopsis
Background: After default judgment was entered in favor of
plaintiff, respondent filed a motion to set aside the default Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit
judgment. The Circuit Court, Pinellas County, Jack R. St. Court for Pinellas County; Jack R. St. Amold, Judge.
Arnold, J., set aside the default judgment. Plaintiff appealed.
Attorneys and Law Firms
Christopher L. DeCort of Johnson & Cassidy, P.A., Tampa,
[Holding:] The District Court of Appeal, LaRose, C.J., held for Appellant.
that respondent was not entitled to set aside default judgment
Sheila Skellie of the Law Office of David J. Kurland, Largo,
based on excusable neglect.
for Appellee.
Opinion
Reversed and remanded.
LaROSE, Chief Judge.
Chernoff Diamond & Co., LLC, appeals the trial court's
West Headnotes (3)
nonfinal order setting aside the final default judgment entered
against Gallin Associates, Inc. We have jurisdiction, Fla.
(1) Appeal and Error @ Relief from default R. App. P. 9.030(b)(1)(B); Fla. R. App. P. 9.130(a)(5), and
judgment Teverse.
The District Court of Appeal reviews the trial
court's order setting aside a default judgment for fi] [2] We review the trial court's order for gross abuse of
gross abuse of discretion. discretion. See United Capital Funding Corp. v. Technamax.
Inc., 946 So.2d 63, 64 (Fla. 2d DCA 2006). To set aside
the final default judgment, Gallin had to show: “(1) that
the failure to file a responsive pleading was the result of
2] Judgment @ Necessity for excuse
excusable neglect; (2) that it has a meritorious defense;
Judgment ¢ Necessity for showing
and (3) that it acted with due diligence in seeking relief
meritorious cause of action or defense from the default.” See Allstate Floridian Ins. Co. v. Ronco
To set aside the final default judgment, a party Invi entions, LLC, 890 So.2d 300, 301 (Fla. 2d DCA 2004)
has to show: (1) that the failure to file a (citing Goodwin v. Goodwin, 559 So.2d 109 (Fla. 2d DCA
responsive pleading was the result of excusable 1990)).
neglect; (2) that it has a meritorious defense; and
~ e ernme
WESTLAW G
Chernoff Diamond & Co., LLC v. Gallin Associates, Inc., 258 So.3d 563 (2018)
43 Fla. L. Weekly D2541
Freedman, 863 So.2d 432, 433-34 (Fla. 4th DCA 2003) ) );
BI see, e.g., Orlando Partners, Ltd. v. Classic Tour Lines, 492
So.2d 1117, 1117 (Fla. 3d DCA 1986) (holding there was
no excusable neglect where wife stated she told her husband
about receipt of summons but forgot to tell him about hearing
on motion for entry of default and husband did not recall
knowledge of summons).
Reversed and remanded.
SILBERMAN and ATKINSON, JJ., Concur.
that is to
say, where the conduct could reasonably be characterized All Citations
as partaking of gross negligence or as constituting a willful
258 So.3d 563, 43 Fla. L. Weekly D2541
and intentional refusal to act.” (quoting Jeyanandarajan_v.
End of Document © 2023 Thomson Reuters. No claim to original U.S
Government Works.
WESTLAW © 2023 Thomson Reuters. No claim to original U.S. Government Works.
Trinka v. Struna, 913 So.2d 626 (2005)
30 Fla. L. Weekly D1282
move to set default aside once he discovered its
913 So.2d 626 entry.
District Court of Appeal of Florida,
1 Case that cites this headnote
Fourth District.
Gail TRINKA, Appellant, 2] Judgment @ Notice of Entry of Judgment
v Where a default has been entered and discovered,
it is also incumbent upon the lawyer to exercise
William STRUNA, Appellee.
all due diligence to seek its vacation; further
delay in excess of the time reasonably necessary
No. 4D04—-1939.
to prepare and file a notice to vacate should prove
|
fatal, absent some exceptional circumstance.
May 18, 2005.
2 Cases that cite this headnote
Synopsis
Background: Attomey filed motion to set aside final default
judgment in declaratory judgment action, excusing his failure
to appear at hearing on plaintiff's motion for default by
Attorneys and Law Firms
blaming his secretary for failing to monitor the court clerk's
file to ascertain whether a default had been entered. The *626 William A. Fleck of Kramer, Ali, Fleck, Hughes, Gelb
Circuit Court, Fifteenth Judicial Circuit, Palm Beach County, & Bornstein, Jupiter, for appellant.
David F. Crow, J., vacated final default judgment, finding
excusable neglect. Plaintiff appealed. Lynn Waxman of Lynn Waxman, P.A., West Palm Beach, and
Charles Ryan Hickman of Charles Ryan Hickman, P.A., West
Palm Beach, for appellee.
[Holding:] The District Court of Appeal, Warner, J., held Opinion
that attorney's alleged reliance on court order setting case for
nonjury trial despite existence of default obtained by plaintiff WARNER, J.
was not excusable neglect as would warranting setting aside
default judgment. (1) The trial court set aside a default final judgment after
concluding that the defendant's attomey showed excusable
neglect in failing to move to set aside the default. We
Reversed and remanded for reinstatement of judgment. conclude that the attorney's actions amounted to willful
conduct because he intentionally did not answer the complaint
before the default was entered and failed to promptly move to
set the default aside once he discovered its entry. Therefore,
West Headnotes (2)
the order setting aside the final judgment is reversed.
(1) Judgment @ Negligent Failure of Counsel to Appellant, Gail Trinka, filed suit against appellee, William
Plead Struna, for declaratory relief. Struna was served with the
complaint on April 14, 2003, and sought the services of
Judgment ¢ Notice of Entry of Judgment
his attorney, Charles Hickman. Hickman had a copy of the
Defense attomey's alleged reliance on court
complaint in *627 hand by May 1, 2003. Hickman believed
order setting case for nonjury trial, despite
that a jurisdictional issue was present regarding service of
existence of default obtained by plaintiff, was not
process. On May 5, Hickman instructed his secretary to check
excusable neglect as would warranting setting
with the clerk's office on a daily basis in order to determine
aside default judgment entered against defendant
whether a motion for default had been filed.
in declaratory judgment action, where attorney
intentionally chose not to answer complaint
before default was entered and failed to promptly
WESTLAW
Trinka v. Struna, 913 So.2d 626 (2005)
30 Fla. L. Weekly D1282
Although Trinka could have moved for a default on May 5, the order setting trial in the end of July resulted in Hickman's
her attorney waited until May 12 to file the motion. Because confusion. Therefore, the court found excusable neglect and
Hickman's secretary failed to continually check with the vacated the default final judgment.
clerk's office, she missed the filing of the motion for default
on May 12. The clerk entered the default on May 13. Hickman 2] We cannot agree that the actions of Struna's counsel
admitted that in delaying a response to the complaint he was constituted excusable neglect. In Somero v. Hendry General
relying on opposing counsel's lack of diligence in moving for Hospital, 467 So.2d 1103 (Fla. 4th DCA 1985), this court
a default. concluded:
After securing the clerk's default, Trinka moved for a Default The pattem which emerges from these and the myriad of
Final Judgment on May 15 and sent notice to Struna. Notice cases not cited here is best stated negatively: a default
was not sent to Hickman because he had never entered an will not be set aside where the defaulted party or his
appearance. Trinka noticed a hearing for May 20, but neither attomey (1) simply forgot or (2) intentionally ignored the
Struna nor Hickman appeared at the hearing. Thereafter, the necessity to take appropriate action; that is to say, where
court set an order for non-jury trial with docket call on July the conduct could reasonably be characterized as partaking
18. Hickman became aware of the default when he received of gross *628 negligence or as constituting a willful and
the May 28 order of the court. intentional refusal to act.
Id. at 1105-06 (emphasis added). Where a default has been.
Despite being aware of the default, Hickman took no action entered and discovered, it is also incumbent upon the lawyer
to set it aside, believing that he now had until July 18 to file to exercise all due diligence to seek its vacation. “[S]wift
something in the case before a judgment was entered. Trinka, action must be taken upon first receiving knowledge of
realizing that no trial was needed because of the default, any default. Further delay in excess of the time reasonably
filed an ex parte motion with the court to clarify its order necessary to prepare and file a notice to vacate should prove
setting the case for trial in which she argued that she was fatal, absent some exceptional circumstance.” Westinghouse
entitled to a default final judgment. The court admitted that it Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329,
had erroneously set the case on a non-jury docket. The court 1330 (Fla. 4th DCA 1978).
entered a final judgment on July 1, 2003.
In this case, defendant's attorney “intentionally ignored the
Struna filed a motion to dismiss and quash service on July necessity to take appropriate action.” Somero, 467 So.2d at
3, 2003, in which he also sought to vacate the default. The 1105. First, he did not immediately answer the complaint or
motion to quash service was denied. All his motion stated take any action to extend the time for filing motions or an
with respect to the default was that the final judgment was answer. Instead, he told his secretary to check to see if a
entered on July 1, while the court file indicated that the order default was entered and to keep checking for its entry. He
set a non-jury trial for July 28. No affidavit indicating any knew that a default had not been entered, yet he failed to
excusable neglect was filed. An amended motion to set aside file any pleading, instead waiting until the default had been
default was filed in September, again noting the order setting entered, saying he was relying on the opposing counsel's lack
trial and stating that because the trial was to be set on July 28, of diligence in moving for a default!
Hickman believed that there was time to assert meritorious
defenses. No attempt was made in the motion to explain how Even when a default was entered and discovered, defendant's
the entry of the default was the result of excusable neglect. attorney did not move immediately to vacate the default
Although he thought he had plenty of time until a final
At the hearing on the motion for default, Hickman, for the judgment was entered based upon the trial being set in the
first time, blamed his secretary for failing to monitor the end of July, he obviously did not appreciate his duty to
clerk's file to ascertain whether a default had been entered. He immediately seek to vacate the known default. More than a
admitted, however, that he had learned of the clerk's default month passed between the discovery of the default and the
when he reviewed the file and discovered the order for trial. entry of the final judgment without any attempt to vacate the
He relied on the trial date in the end of July, concluding that default. That defendant's attorney ignored his duty to act with
he had time to prepare pleadings. The court determined that all due diligence is clear.
this constituted “inadvertence, mistake, or carelessness,” and
WESTLAW
Trinka v. Struna, 913 So.2d 626 (2005)
30 Fla. L. Weekly D1282
The entry of the default was caused by the intentional failure
of defendant's attorney to act, as was the failure to move to
set aside the default, resulting in the entry of the default final FARMER, C.J. and GUNTHER, J., concur.
judgment. Based upon Somero and Westinghouse Credit, this
conduct cannot be considered excusable neglect. We therefore All Citations
reverse and remand for reinstatement of the final judgment.
913 So.2d 626, 30 Fla. L. Weekly D1282
End of Document © 2023 Thomson Reuters. No claim to original U.S.
Government Works.
WESTLAW 2023 Thomson Reuters. No claim t jinal U.S sovernment W ks.
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Filing # 176376652 E-Filed 06/28/2023 04:10:46 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION VENISSA DRIGGERS, as Personal Representative of the Estate of DAVID B. FLICK, Deceased, CASE NO. 21-CA-410 Plaintiffs, vs. MARK BARCIA, HOOTERS OF PORT CHARLOTTE, INC., BWR NORTH PORT, LLC d/b/a BUFFALO WINGS AND RINGS, ATLANTA RESTAURANT PARTNERS, LLC d/b/a TGI FRIDAYS, and JACKMONT HOSPITALITY, INC. d/b/a TGI FRIDAYS, Defendants. / PLAINTIFF’S NOTICE OF FILING SUPPLEMENTAL AUTHORITY IN OPPOSITION TO DEFENDANT, HOOTERS OF PORT CHARLOTTE, INC.’S, AMENDED MOTION FOR RELIEF FROM, AND TO VACATE, FINAL JUDGMENT Plaintiff, VENISSA DRIGGERS, as Personal Representative of the Estate of DAVID B. FLICK, Deceased, hereby gives notice that Plaintiff has filed the following attached supplemental case law authority in opposition to Defendant, Hooters of Port Charlotte, Inc.’s Amended Motion for Relief from, and to Vacate, Final, Judgment (in addition to the authorities previously cited in Plaintiff’s Memorandum of Law in Opposition), for use at the evidentiary hearing on said Motion on June 30, 2023, and for any other purpose: 1 Chernoff Diamond & Co., LLC v. Gallin Associates, Inc., 258 So. 3d 563 (Fla. 2nd DCA 2018) 2. Trinka v. Struna, 913 So. 2d 626 (Fla. 4th DCA 2005) CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail on the 28th day of June, 2023, to T.R. Unice, Jr., Esq., Unice Salzman Jensen, P.A., SouthState Bank Building, Seconf Floor 1815 Little Road, Trinity, FL 34655; Michael Rubin, Esq. and Joshua W. Brankamp, Esq.., Ritter Chusid, LLP, 5850 Coral Ridge Dr., Ste. 201, Coral Springs, FL 33076. SPIVEY LAW FIRM PERSONAL INJURY ATTORNEYS, P.A. 13400 Parker Commons Boulevard Fort Myers, FL 33912 Phone: (239) 337-7483 Fax: (239) 337-7484 By My RANDALL L. SPIVEY Florida Bar No. 0064742 Chernoff Diamond & Co., LLC v. Gallin Associates, Inc., 258 So.3d 563 (2018) 43 Fla. L. Weekly D2541 (3) that it acted with due diligence in seeking 258 So.3d 563 telief from the default. District Court of Appeal of Florida, Second District. CHERNOFF DIAMOND B] Judgment @ Mistake, surprise, or excusable neglect in general & CO., LLC, Appellant, Respondent was not entitled to set aside default Vv. judgment based on excusable neglect, where GALLIN ASSOCIATES, INC., d/ respondent's president was served with the b/a Gallin Associates, Appellee. complaint, knew he had to respond, yet he put the complaint and summons in a drawer, left for Case No. 2D 18-1891 vacation, and forgot about the lawsuit until he | received notice of entry of a final judgment. Opinion filed November 14, 2018 Synopsis Background: After default judgment was entered in favor of plaintiff, respondent filed a motion to set aside the default Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit judgment. The Circuit Court, Pinellas County, Jack R. St. Court for Pinellas County; Jack R. St. Amold, Judge. Arnold, J., set aside the default judgment. Plaintiff appealed. Attorneys and Law Firms Christopher L. DeCort of Johnson & Cassidy, P.A., Tampa, [Holding:] The District Court of Appeal, LaRose, C.J., held for Appellant. that respondent was not entitled to set aside default judgment Sheila Skellie of the Law Office of David J. Kurland, Largo, based on excusable neglect. for Appellee. Opinion Reversed and remanded. LaROSE, Chief Judge. Chernoff Diamond & Co., LLC, appeals the trial court's West Headnotes (3) nonfinal order setting aside the final default judgment entered against Gallin Associates, Inc. We have jurisdiction, Fla. (1) Appeal and Error @ Relief from default R. App. P. 9.030(b)(1)(B); Fla. R. App. P. 9.130(a)(5), and judgment Teverse. The District Court of Appeal reviews the trial court's order setting aside a default judgment for fi] [2] We review the trial court's order for gross abuse of gross abuse of discretion. discretion. See United Capital Funding Corp. v. Technamax. Inc., 946 So.2d 63, 64 (Fla. 2d DCA 2006). To set aside the final default judgment, Gallin had to show: “(1) that the failure to file a responsive pleading was the result of 2] Judgment @ Necessity for excuse excusable neglect; (2) that it has a meritorious defense; Judgment ¢ Necessity for showing and (3) that it acted with due diligence in seeking relief meritorious cause of action or defense from the default.” See Allstate Floridian Ins. Co. v. Ronco To set aside the final default judgment, a party Invi entions, LLC, 890 So.2d 300, 301 (Fla. 2d DCA 2004) has to show: (1) that the failure to file a (citing Goodwin v. Goodwin, 559 So.2d 109 (Fla. 2d DCA responsive pleading was the result of excusable 1990)). neglect; (2) that it has a meritorious defense; and ~ e ernme WESTLAW G Chernoff Diamond & Co., LLC v. Gallin Associates, Inc., 258 So.3d 563 (2018) 43 Fla. L. Weekly D2541 Freedman, 863 So.2d 432, 433-34 (Fla. 4th DCA 2003) ) ); BI see, e.g., Orlando Partners, Ltd. v. Classic Tour Lines, 492 So.2d 1117, 1117 (Fla. 3d DCA 1986) (holding there was no excusable neglect where wife stated she told her husband about receipt of summons but forgot to tell him about hearing on motion for entry of default and husband did not recall knowledge of summons). Reversed and remanded. SILBERMAN and ATKINSON, JJ., Concur. that is to say, where the conduct could reasonably be characterized All Citations as partaking of gross negligence or as constituting a willful 258 So.3d 563, 43 Fla. L. Weekly D2541 and intentional refusal to act.” (quoting Jeyanandarajan_v. End of Document © 2023 Thomson Reuters. No claim to original U.S Government Works. WESTLAW © 2023 Thomson Reuters. No claim to original U.S. Government Works. Trinka v. Struna, 913 So.2d 626 (2005) 30 Fla. L. Weekly D1282 move to set default aside once he discovered its 913 So.2d 626 entry. District Court of Appeal of Florida, 1 Case that cites this headnote Fourth District. Gail TRINKA, Appellant, 2] Judgment @ Notice of Entry of Judgment v Where a default has been entered and discovered, it is also incumbent upon the lawyer to exercise William STRUNA, Appellee. all due diligence to seek its vacation; further delay in excess of the time reasonably necessary No. 4D04—-1939. to prepare and file a notice to vacate should prove | fatal, absent some exceptional circumstance. May 18, 2005. 2 Cases that cite this headnote Synopsis Background: Attomey filed motion to set aside final default judgment in declaratory judgment action, excusing his failure to appear at hearing on plaintiff's motion for default by Attorneys and Law Firms blaming his secretary for failing to monitor the court clerk's file to ascertain whether a default had been entered. The *626 William A. Fleck of Kramer, Ali, Fleck, Hughes, Gelb Circuit Court, Fifteenth Judicial Circuit, Palm Beach County, & Bornstein, Jupiter, for appellant. David F. Crow, J., vacated final default judgment, finding excusable neglect. Plaintiff appealed. Lynn Waxman of Lynn Waxman, P.A., West Palm Beach, and Charles Ryan Hickman of Charles Ryan Hickman, P.A., West Palm Beach, for appellee. [Holding:] The District Court of Appeal, Warner, J., held Opinion that attorney's alleged reliance on court order setting case for nonjury trial despite existence of default obtained by plaintiff WARNER, J. was not excusable neglect as would warranting setting aside default judgment. (1) The trial court set aside a default final judgment after concluding that the defendant's attomey showed excusable neglect in failing to move to set aside the default. We Reversed and remanded for reinstatement of judgment. conclude that the attorney's actions amounted to willful conduct because he intentionally did not answer the complaint before the default was entered and failed to promptly move to set the default aside once he discovered its entry. Therefore, West Headnotes (2) the order setting aside the final judgment is reversed. (1) Judgment @ Negligent Failure of Counsel to Appellant, Gail Trinka, filed suit against appellee, William Plead Struna, for declaratory relief. Struna was served with the complaint on April 14, 2003, and sought the services of Judgment ¢ Notice of Entry of Judgment his attorney, Charles Hickman. Hickman had a copy of the Defense attomey's alleged reliance on court complaint in *627 hand by May 1, 2003. Hickman believed order setting case for nonjury trial, despite that a jurisdictional issue was present regarding service of existence of default obtained by plaintiff, was not process. On May 5, Hickman instructed his secretary to check excusable neglect as would warranting setting with the clerk's office on a daily basis in order to determine aside default judgment entered against defendant whether a motion for default had been filed. in declaratory judgment action, where attorney intentionally chose not to answer complaint before default was entered and failed to promptly WESTLAW Trinka v. Struna, 913 So.2d 626 (2005) 30 Fla. L. Weekly D1282 Although Trinka could have moved for a default on May 5, the order setting trial in the end of July resulted in Hickman's her attorney waited until May 12 to file the motion. Because confusion. Therefore, the court found excusable neglect and Hickman's secretary failed to continually check with the vacated the default final judgment. clerk's office, she missed the filing of the motion for default on May 12. The clerk entered the default on May 13. Hickman 2] We cannot agree that the actions of Struna's counsel admitted that in delaying a response to the complaint he was constituted excusable neglect. In Somero v. Hendry General relying on opposing counsel's lack of diligence in moving for Hospital, 467 So.2d 1103 (Fla. 4th DCA 1985), this court a default. concluded: After securing the clerk's default, Trinka moved for a Default The pattem which emerges from these and the myriad of Final Judgment on May 15 and sent notice to Struna. Notice cases not cited here is best stated negatively: a default was not sent to Hickman because he had never entered an will not be set aside where the defaulted party or his appearance. Trinka noticed a hearing for May 20, but neither attomey (1) simply forgot or (2) intentionally ignored the Struna nor Hickman appeared at the hearing. Thereafter, the necessity to take appropriate action; that is to say, where court set an order for non-jury trial with docket call on July the conduct could reasonably be characterized as partaking 18. Hickman became aware of the default when he received of gross *628 negligence or as constituting a willful and the May 28 order of the court. intentional refusal to act. Id. at 1105-06 (emphasis added). Where a default has been. Despite being aware of the default, Hickman took no action entered and discovered, it is also incumbent upon the lawyer to set it aside, believing that he now had until July 18 to file to exercise all due diligence to seek its vacation. “[S]wift something in the case before a judgment was entered. Trinka, action must be taken upon first receiving knowledge of realizing that no trial was needed because of the default, any default. Further delay in excess of the time reasonably filed an ex parte motion with the court to clarify its order necessary to prepare and file a notice to vacate should prove setting the case for trial in which she argued that she was fatal, absent some exceptional circumstance.” Westinghouse entitled to a default final judgment. The court admitted that it Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329, had erroneously set the case on a non-jury docket. The court 1330 (Fla. 4th DCA 1978). entered a final judgment on July 1, 2003. In this case, defendant's attorney “intentionally ignored the Struna filed a motion to dismiss and quash service on July necessity to take appropriate action.” Somero, 467 So.2d at 3, 2003, in which he also sought to vacate the default. The 1105. First, he did not immediately answer the complaint or motion to quash service was denied. All his motion stated take any action to extend the time for filing motions or an with respect to the default was that the final judgment was answer. Instead, he told his secretary to check to see if a entered on July 1, while the court file indicated that the order default was entered and to keep checking for its entry. He set a non-jury trial for July 28. No affidavit indicating any knew that a default had not been entered, yet he failed to excusable neglect was filed. An amended motion to set aside file any pleading, instead waiting until the default had been default was filed in September, again noting the order setting entered, saying he was relying on the opposing counsel's lack trial and stating that because the trial was to be set on July 28, of diligence in moving for a default! Hickman believed that there was time to assert meritorious defenses. No attempt was made in the motion to explain how Even when a default was entered and discovered, defendant's the entry of the default was the result of excusable neglect. attorney did not move immediately to vacate the default Although he thought he had plenty of time until a final At the hearing on the motion for default, Hickman, for the judgment was entered based upon the trial being set in the first time, blamed his secretary for failing to monitor the end of July, he obviously did not appreciate his duty to clerk's file to ascertain whether a default had been entered. He immediately seek to vacate the known default. More than a admitted, however, that he had learned of the clerk's default month passed between the discovery of the default and the when he reviewed the file and discovered the order for trial. entry of the final judgment without any attempt to vacate the He relied on the trial date in the end of July, concluding that default. That defendant's attorney ignored his duty to act with he had time to prepare pleadings. The court determined that all due diligence is clear. this constituted “inadvertence, mistake, or carelessness,” and WESTLAW Trinka v. Struna, 913 So.2d 626 (2005) 30 Fla. L. Weekly D1282 The entry of the default was caused by the intentional failure of defendant's attorney to act, as was the failure to move to set aside the default, resulting in the entry of the default final FARMER, C.J. and GUNTHER, J., concur. judgment. Based upon Somero and Westinghouse Credit, this conduct cannot be considered excusable neglect. We therefore All Citations reverse and remand for reinstatement of the final judgment. 913 So.2d 626, 30 Fla. L. Weekly D1282 End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 2023 Thomson Reuters. No claim t jinal U.S sovernment W ks.