CHERNOFF DIAMOND & CO., L L C v. GALLIN ASSOCIATES, INC., D/B/A GALLIN ASSOC.

258 So. 3d 563

• Court: District Court of Appeal of Florida
• Decided: November 14, 2018
• Docket: 18-1891
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

CHERNOFF DIAMOND & CO., LLC, ) ) Appellant, ) ) v. ) Case No. 2D18-1891 ) GALLIN ASSOCIATES, INC., d/b/a ) GALLIN ASSOCIATES, ) ) Appellee. ) )

Opinion filed November 14, 2018.

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; Jack R. St. Arnold, Judge.

Christopher L. DeCort of Johnson & Cassidy, P.A., Tampa, for Appellant.

Sheila Skellie of the Law Office of David J. Kurland, Largo, for Appellee.

LaROSE, Chief Judge.

Chernoff Diamond & Co., LLC, appeals the trial court's nonfinal order

setting aside the final default judgment entered against Gallin Associates, Inc. We have

jurisdiction, Fla. R. App. P. 9.030(b)(1)(B); Fla. R. App. P. 9.130(a)(5), and reverse.

We review the trial court's order for gross abuse of 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 excusable neglect; (2) that it has a meritorious

defense; and (3) that it acted with due diligence in seeking relief from the default." See

Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300, 301 (Fla. 2d DCA

2004) (citing Goodwin v. Goodwin, 559 So. 2d 109 (Fla. 2d DCA 1990)).

Gallin failed to prove excusable neglect. The record demonstrates that

Gallin's president, Lawrence Gallin, was served with the complaint and knew he had to

respond. Yet, he put the complaint and summons in a drawer, left for vacation, and

forgot about the lawsuit until he received notice of the entry of a final judgment.

We are constrained to reverse and remand for the trial court to reinstate

the final default judgment. See Bethesda Mem'l Hosp., Inc. v. Laska, 977 So. 2d 804,

807 (Fla. 4th DCA 2008) ("[A] default will not be set aside where the defaulted party or

his attorney (1) simply forgot or (2) intentionally ignored the necessity to take

appropriate action; that is to say, where the conduct could reasonably be characterized

as partaking of gross negligence or as constituting a willful and intentional refusal to

act." (quoting Jeyanandarajan v. Freedman, 863 So. 2d 432, 433-34 (Fla. 4th DCA

2003))); 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.

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