Debello v. Faske

District Court of Appeal of Florida

Debello v. Faske

668 So. 2d 324, 1996 Fla. App. LEXIS 1530, 1996 WL 72147

CourtDistrict Court of Appeal of Florida

DecidedFebruary 21, 1996

DocketNo. 95-2011

StatusPublished

Cited by2 cases

This text of 668 So. 2d 324 (Debello v. Faske) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Debello v. Faske, 668 So. 2d 324, 1996 Fla. App. LEXIS 1530, 1996 WL 72147 (Fla. Ct. App. 1996).

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Opinion

SCHWARTZ, Chief Judge.

The defendant below appeals from an order denying his Rule 1.540 motion for relief from a money judgment entered after a jury trial at which he did not appear and was not represented. In accordance with the trial judge’s oral ruling at the hearing on the motion, but contrary to the actual order entered after an unexplained period of almost two years had elapsed, we reverse both because (a) Debello’s failure to attend the trial, notwithstanding that he filed an answer and otherwise indicated his intention to defend, was the result of plainly “excusable neglect,” stemming from an understandable failure of communication concerning the date and time of the actual trial, see Baker v. Baker, 538 So.2d 74 (Fla. 1st DCA 1989); Florida Deft of Envtl. Regulation v. Chemairspray, Inc., 520 So.2d 96 (Fla. 4th DCA 1988); Supro Corp. v. Bridwell, 361 So.2d 734 (Fla. 4th DCA 1978), and because (b) the trial judge erroneously defaulted the defendant at the beginning of the trial. Whether or not the defendant’s absence is excusable — as we have held that Debello’s was — the plaintiff must be put to his proof against a defendant who has answered and thus not defaulted in the case. Delancer v. Advanced Mortgage Inv. Co., 546 So.2d 130 (Fla. 3d DCA 1989); Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So.2d 424 (Fla. 3d DCA 1979); Stern v. Commercial Constr. Corp., 268 So.2d 549 (Fla. 3d DCA 1972), cert. denied, 276 So.2d 166 (Fla.1973); Ortiz v. Nicolaides, 196 So.2d 186 (Fla. 3d DCA 1967). The order below is therefore reversed for trial on the merits.

Reversed.

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SCHWARTZ, Chief Judge.

The defendant below appeals from an order denying his Rule 1.540 motion for relief from a money judgment entered after a jury trial at which he did not appear and was not represented. In accordance with the trial judge’s oral ruling at the hearing on the motion, but contrary to the actual order entered after an unexplained period of almost two years had elapsed, we reverse both because (a) Debello’s failure to attend the trial, notwithstanding that he filed an answer and otherwise indicated his intention to defend, was the result of plainly “excusable neglect,” stemming from an understandable failure of communication concerning the date and time of the actual trial, see Baker v. Baker, 538 So.2d 74 (Fla. 1st DCA 1989); Florida Deft of Envtl. Regulation v. Chemairspray, Inc., 520 So.2d 96 (Fla. 4th DCA 1988); Supro Corp. v. Bridwell, 361 So.2d 734 (Fla. 4th DCA 1978), and because (b) the trial judge erroneously defaulted the defendant at the beginning of the trial. Whether or not the defendant’s absence is excusable — as we have held that Debello’s was — the plaintiff must be put to his proof against a defendant who has answered and thus not defaulted in the case. Delancer v. Advanced Mortgage Inv. Co., 546 So.2d 130 (Fla. 3d DCA 1989); Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So.2d 424 (Fla. 3d DCA 1979); Stern v. Commercial Constr. Corp., 268 So.2d 549 (Fla. 3d DCA 1972), cert. denied, 276 So.2d 166 (Fla.1973); Ortiz v. Nicolaides, 196 So.2d 186 (Fla. 3d DCA 1967). The order below is therefore reversed for trial on the merits.

Reversed.

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Bluebook (online)

668 So. 2d 324, 1996 Fla. App. LEXIS 1530, 1996 WL 72147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/debello-v-faske-fladistctapp-1996.

Opinion

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