FLORIDA SUPREME COURT CASE NO. SC (Lower Tribunal Case 3D ) RENE CARABALLO, Petitioner,

Transcription

1 FLORIDA SUPREME COURT CASE NO. SC (Lower Tribunal Case 3D ) RENE CARABALLO, Petitioner, v. LAZCAR INTERNATIONAL, INC., a Florida Corporation, Respondent. PETITIONER=S INITIAL BRIEF ON JURISDICTION ARNALDO VELEZ, P.A. Attorneys for Petitioner 35 Almeria Avenue Coral Gables, FL Tel: Fax:

2 TABLE OF CONTENTS Document Page Table of Authorities Cited ii Statement of the Case and of the Facts 1 Point for Consideration 1-2 Summary of Argument 2 Argument 2-6 Conclusion 6 Certificate of Compliance with Font Requirements 7 Certificate of Service 8 -i-

3 TABLE OF AUTHORITIES CITED Case Page County Nat=l Bank of North Miami Beach v. Sheridan, Inc. 2,3 403 So.2d 502, 503 (Fla. 4th DCA, 1981) Gay v. Moreland 2,3 450 So.2d 1270, 1272 (Fla. 5th DCA, 1984) Geer v. Jacobsen 2,3 880 So.2d 717, 720 (Fla. 4th DCA, 2004) George v. Radcliffe 2,3 753 So.2d 573 (Fla. 4th DCA, 2007) North Shore Hospital v. Barber 2,3 143 So 2d 849 (Fla., 1962) Rivera v. Dep=t of Revenue 2,3 899 So. 2d 1265, 1267 (Fla. 2d DCA, 2005) Schwab & Co. v. Breezy Bay, Inc. 2,3,6 360 So. 2d 117, 118 (Fla. 3d DCA, 1978) Sterline Drug Inc. v. Wright 2,3 342 So.2d 503 (Fla, 1977) -ii-

4 STATEMENT OF THE FACTS AND OF THE CASE Upon Petitioner Caraballo=s motion a Default Final Judgment was vacated by a trial court. 1 Caraballo waited at least six weeks after learning of the entry of the judgment before moving for relief through a sworn Motion to Vacate Default and Default Final Judgment. 2 Lazcar International, Inc., the Plaintiff, appealed, asserting the trial court erred as a matter of law in vacating the Default Final Judgment. The Third District reversed the trial court=s order on the basis that Aabsent competent substantial evidence of some exceptional circumstance explaining the delay...a six week delay in filing a motion to vacate a default after receiving notice constitutes a lack of due diligence as a matter of law.@ 3 Rene Caraballo invokes the Court=s discretionary jurisdiction described in Fla. R. App. P (a)(2)(a) to have this Court determine whether the decision of the Third District conflicts with decisions hereinafter identified. POINT FOR CONSIDERATION See Appendix (herein AA@) at page 2. A, 2. A, 3. All emphasis is supplied unless otherwise indicated. -1-

5 DOES THE DECISION OF THE THIRD DISTRICT CONFLICT WITH THE DECISIONS OF: Sterling Drug Inc. v. Wright, 342 So.2d 503 (Fla, 1977); North Shore Hospital v. Barber, 143 So 2d 849 (Fla., 1962); Gay v. Moreland, 450 So.2d 1270 (Fla. 5th DCA, 1984); Geer v. Jacobsen, 880 So.2d 717 (Fla. 4th DCA, 2004); George v. Radcliffe, 753 So.2d 573 (Fla. 4th DCA, 2007); County Nat=l Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA, 1981); and Schwab & Co. v. Breezy Bay, Inc., 360 So. 2d 117, 118 (Fla. 3d DCA, 1978). SUMMARY OF ARGUMENT Decisions from this Court and our appellate courts allot trial courts wide discretion in passing upon motions to vacate defaults. The Third District=s decision eliminates this wide discretion and is therefore in conflict with decisions from this Court and the other appellate courts of the State of Florida. ARGUMENT This Court=s decision in North Shore Hospital v. Barber, 143 So 2d 849 (Fla. 1962) provides the predicate for the rule that the discretion reposed in a trial judgment to vacate defaults Ais of the broadest scope@. A legion of authority provides that a gross abuse of discretion must be shown in order to reverse a trial court=s ruling on a motion -2-

6 for default and most importantly a greater showing of an abuse of discretion is required to reverse a trial court=s order granting a Motion to Vacate a Default than is required to reverse a denial of such motion.[ 4 ] Thus, when a default judgment has been set aside, the appellate court=s deference to the trial court=s discretion must be extreme.[ 5 ] When a lower tribunal exercises discretion to vacate the default under this broadest scope of discretion it is consonant with the great force that if there be any reasonable doubt in the matter [of vacating a 4 Sterling Drug Inc. v. Wright, 342 So.2d 503 (Fla. 1977); Gay v. Moreland, 450 So.2d 1270, 1272 (Fla. 5th DCA, 1984); Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 4th DCA, 2004); George v. Radcliffe, 753 So.2d 573 (Fla. 4th DCA, 2007); County Nat=l Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502, 503 (Fla. 4th DCA, 1981); Schwab & Co. v. Breezy Bay, Inc., 360 So. 2d 117, 118 (Fla. 3d DCA, 1978). Among the policies supporting these decisions is that Courts should seek to address the merits of an action ). Rivera v. Dep=t of Revenue, 899 So. 2d 1265, 1267 (Fla. 2d DCA, -3-

7 default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.[ 6 ] Indeed, years ago this Court in North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962), faulted the Third District for adopting what appeared as an arch conservative approach regarding defaults. Florida=s Supreme Court provided a definitive pronouncement regarding defaults stating: The second point in direct conflict with prior decisions of this court is the holding by the District Court that a mere abuse of the trial judge's discretion is a sufficient basis for reversal of his ruling on the motion to vacate. In Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9, and Coggin v. Morris, 150 Fla. 555, 8 So.2d 11, which were by implication relied on by the District Court as well as in Benedict v. W. T. Hadlow Co., 52 Fla. 188, 42 So. 239, this court held that a showing of gross abuse of a trial court's discretion is necessary on appeal to justify reversal of the lower court's ruling on a motion to vacate. This is not to say that the District Court's reversal is fatally erroneous merely because they omitted to use the words >gross abuse=, but when this omission is considered in light of the opinion as a whole, it becomes apparent that the District Court departed from established law and attributed to our prior decisions erroneous principles of law so as to create a direct conflict. Pinkerton-Hays Lumber Co. v. Pope, Fla.1961, 127 So.2d 441.The third and last area of conflict is intertwined with the second. In Coggin v. Barfield, supra, this court stated: >It is the rule that the opening of judgments is a matter of judicial discretion and >in a case of reasonable doubt, where there has been no trial upon the merits, this discretion is usually exercised in favor of granting 6 North Shore Hosp. Inc. v. Barber, 143 So. 2d 849, 853 (Fla. 1962). -4-

8 the application so as to permit a determination of the controversy upon the merits.= 31 Am.Jur., Judgments, Section 717. As it is expressed in Florida Common Law Practice (Crandall) Section 54, >the courts are reasonably liberal in granting motions to set aside defaults. * * * The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.= Likewise, in State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40, we said, >* * * if there by any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case. 15 R.C.L. 721, ' 175.=We conclude that the District Court's opinion, if permitted to stand, would inevitably thwart the liberal policy of this court as stated in the two decisions last cited. The Third District=s decision in the instant case in vice like form mandates that the passage of six weeks from the time one learns of the entry of a default ipso facto deprives a trial court from exercising its discretion to consider a motion to vacate a default. The decision debases and more so interferes with the full heft provided trial courts by the decisions noted above. By pronouncing a rule Athat a six week delay in filing a motion to vacate a default after receiving notice constitutes a lack of due diligence as a matter of law@ the discretion granted in the decisions noted has been eviscerated. Such a rule is contrary to the Awide discretion@ rule, Acollides@ with it; succinctly it conflicts with the cited decisions. -5-

9 Notably, no decision heretofore handed down by any of our courts prescribes so exact a required urgency or bright line within which a litigant must act. We remind the Court that it is the duty of the trial court, not the appellate courts, to make the determination of whether or not the facts constitute excusable neglect, mistake or inadvertence sufficient to excuse compliance with the rules. 7 CONCLUSION The Third District has pronounced a decision that conflicts with decisions from this Court and the First, Second, Third, Fourth & Fifth District Courts of Appeal. ARNALDO VELEZ, P.A. Attorneys for Petitioner 35 Almeria Avenue Coral Gables, FL Tel: Fax: BY: Arnaldo Velez 7 Schwab, supra at 118; see also Fryer v. Industrial Fire & Casualty Ins. Co., 339 So. 2d 285, 287 (Fla. 3d DCA, 1976) (Inadvertence or mistake cannot be held as a matter of law sufficient to excuse compliance; it may be in some instances but not in others. It is the duty of the trial court and not the appellate courts to make that determination.). -6-

10 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS I HEREBY CERTIFY that Petitioner=s Initial Brief on Jurisdiction complies with the font requirements of Rule 9.210(a)(2), of the Florida Rules of Appellate Procedure. ARNALDO VÉLEZ, P.A. Attorneys for Petitioner 35 Almeria Avenue Coral Gables, FL Tel: Fax: BY: Arnaldo Velez -7-

11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing was on July 26, 2007, served via U.S. Mail upon Gordon C. Watt, Gordon C. Watt, P.A., Attorney for Appellant, 4500 LeJeune Road, Coral Gables, FL (Fax: ). ARNALDO VELEZ, P.A. Attorneys for Petitioner 35 Almeria Avenue Coral Gables, FL Tel: Fax: BY: Arnaldo Velez \\saleserver\common\g V\APPEALS\CARABALLO\SUPREME COURT\brief.wpd -8-