Inexcusable neglect...

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 30

CASES FROM THE WEEK OF JULY 26, 2019

TRIAL COURT ABUSED DISCRETION IN GRANTING MOTION TO VACATE DEFAULT JUDGMENT – NO SHOWING OF EXCUSABLE NEGLECT OR DUE DILIGENCE.

Chetu, Inc. v. Franklin First Financial, 44 Fla. L. Weekly D1841 (Fla. 4th DCA July 17, 2019):

Defendant was served with a complaint that it never answered. A clerk’s default was entered. Plaintiff then moved for a default judgment, and set a hearing two months from the entry of the default.

Almost six months later, the defendant moved to vacate the final judgment. The company’s CFO testified that he accepted service and forwarded it to a compliance officer, but never followed up on the case. He conceded that the clerk’s default and subsequent filings were mailed to the correct address, but he did not know whether they were actually received. He testified that he first learned of the final judgment, and then “immediately” hired outside counsel to handle the case. However, the motion to vacate was not filed until almost two months after he admittedly learned of the suit.

According to the court, the defendant failed to present any evidence to show why it failed to file a responsive pleading, much less any evidence that would amount to excusable neglect. There was no evidence to show that documents were not received, and no explanation as to why no action was taken.

The court also found the two-month delay, which the defense asserted was “immediately,” precluded a finding of due diligence. The trial court erred in vacating the default, and the court reversed and remanded for reinstatement of the default judgment.

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FILING OF A COMPULSORY COUNTERCLAIM REOPENED PLEADINGS DIVESTING THE CASE OF ITS “AT ISSUE” STATUS UNDER RULE 1.440—TRIAL DATE ALSO VIOLATED THE MINIMUM INTERVAL “FIFTY DAYS” BETWEEN SERVICE OF LAST PLEADING AND COMMENCEMENT OF TRIAL WHERE ANSWER TO COUNTERCLAIM WAS FILED THE DAY BEFORE. TRIAL COURT ERRED BY BIFURCATING CLAIMS THAT WERE INEXTRICABLY INTERWOVEN.

Ludeca, Inc. v. Alignment and Condition Monitoring, 44 Fla. L. Weekly D1853 (Fla. 3rd DCA July 17, 2019):

The defendant and counterclaimant petitioned for writ of mandamus seeking to compel the trial judge to halt the imminently scheduled trial in a declaratory relief action involving proprietary rights to consumer data. Defendant asserted that the judge failed to adhere to the requirements of Rule 1.440, and also bifurcated interwoven claims, which would inflict harm irremediable on direct appeal.

A case is at issue and ready for trial after any motions directed to last pleading served have been disposed of or if no motions are served, twenty days after the service of the last pleading. Rule 1.440(a) exempts cross-claims from the determination of when an action is at issue but has no parallel provision excluding counterclaims.

When the defendant filed a compulsory counterclaim, it reopened the pleadings and divested the case of its “at issue” status. Additionally, with the filing of the counterclaim, the minimum interval of fifty days between the service of the last pleading and the commencement of trial could not occur.

Finally, the court granted certiorari on the court’s ruling to bifurcate, explaining that was the appropriate remedy for orders severing a bifurcating claim which involves interrelated factual issues because severance risks inconsistent outcomes. Although Rule 1.270(b) does not necessarily preclude a severance of a compulsory counterclaim, it is more likely that severance will prejudice a party or cause inconvenience if the severed issues include a compulsory counterclaim. That is because it is improper to sever a counterclaim and affirmative defenses from the plaintiff’s claim when the facts underlying the claims of the respective parties rest upon common issues of law and fact.

TRIAL COURTS ARE ENCOURAGED TO SPECIFY IN SUMMARY JUDGMENT ORDERS MATERIAL FACTS THAT APPEAR WITHOUT SUBSTANTIAL CONTROVERSY AND THOSE FACTS WHICH REMAIN CONTROVERTED WHEN RULE 1.510(d) APPLIES.

Destin Pointe Owners Ass’n v. Destin Parcel 160, 44 Fla. L. Weekly D1869 (Fla. 1st DCA July 22, 2019):

The court reminded litigants and trial judges that appellate review would be greatly simplified and made more efficient by the trial court’s inclusion of the uncontroverted material facts in summary judgment orders.

NO ERROR IN GRANTING DEFENDANT’S MOTION FOR NEW TRIAL AFTER TRIAL JUDGE CONCLUDED THAT IT APPLIED THE INCORRECT STANDARD IN DENYING A MOTION TO REMOVE A JUROR FOR CAUSE.

Sanchez v. Geico, 44 Fla. L. Weekly D1870 (Fla. 1st DCA July 22, 2019):

This trial in a car crash case was to be on damages only. There were two prospective jurors who bore the last name “Johnson.” One of them expressed a bad experience with their own injury lawsuit and continued injuries. Both had given reasons to support cause challenges of them.

When the parties voiced their challenges for cause, the plaintiff was successful in challenging the other Mr. Johnson for his bias. Geico did not seek to challenge the other Mr. Johnson for cause.

After exhausting its peremptory challenges, and during the lunch recess, Geico’s counsel remembered there were two Mr. Johnson’s, and that he had mistakenly conflated them. Counsel then sought to strike the other Mr. Johnson for cause. Despite the juror saying that he was “leaning towards the plaintiff,” the trial court denied the challenge for cause.

After a $2.5 million-dollar verdict, the trial judge granted Geico’s motion for new trial agreeing that that juror should have been stricken from the jury. The trial court entered a lengthy order before concluding a new trial was appropriate.

The court also found the issue was preserved by Geico’s counsel, who clearly and succinctly presented his argument to the trial court about removing the juror for cause. When the trial court specifically announced that it would not back strike that juror unless it was clear and it should be stricken for cause, the court effectively removed any option from counsel requesting an additional peremptory strike, and that as such, a request for an additional one would have been futile.

One judge did dissent on that part of the decision, reminding litigants that to preserve a claim of error for failure to strike a juror for cause the party challenging the juror must show that he or she has exhausted all peremptory challenges, and then made a request for more such challenges which was denied.