Evangelos v. Dachiel

District Court of Appeal of Florida

Evangelos v. Dachiel

605 So. 2d 577, 1992 Fla. App. LEXIS 10230, 1992 WL 240657

CourtDistrict Court of Appeal of Florida

DecidedSeptember 29, 1992

DocketNo. 92-303

StatusPublished

This text of 605 So. 2d 577 (Evangelos v. Dachiel) 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

Evangelos v. Dachiel, 605 So. 2d 577, 1992 Fla. App. LEXIS 10230, 1992 WL 240657 (Fla. Ct. App. 1992).

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Opinion

PER CURIAM.

Defendants appeal from an order denying their motion to vacate a final judgment and order of default. For the following reasons, we reverse.

Following a failed business transaction, H.H. Dachiel sued defendants in 1988 on various causes of action. When defendants and their attorney failed to appear at a scheduled calendar call in October, 1991, the trial court issued an order to show cause why defendants’ pleadings should not be stricken. Unbeknownst to defendants, their attorney had been disbarred and had closed his practice. At the hearing on the order to show cause, neither defendants nor their attorney appeared. The trial court struck defendants’ pleadings and, on the same day, conducted a bench trial on damages. Judgment was entered for the plaintiff for $496,175.34. Defendants learned of the final judgment upon being served with a subpoena of taking deposition in aid of execution, and retained counsel to move to vacate or set aside the final judgment. The trial court denied the motion.

“The ordinary result of a failure to attend a special call of a trial calendar is to [578]*578subject oneself to a setting of the cause for trial without opportunity to object.” Byron Holding Corp. v. Cohen, 284 So.2d 412, 413 (Fla. 3d DCA 1973). Here, however, defendants had their pleadings stricken and a substantial default judgment entered against them. This case “does not present the extreme case required to justify a sanction as severe as striking the pleadings.” Rosenberg v. Miller, 453 So.2d 885, 886 (Fla. 3d DCA 1984). See also World on Wheels, Inc. v. International Auto Motors, Inc., 569 So.2d 836 (Fla. 3d DCA 1990).

Accordingly, we reverse the final judgment and the order striking the defendants’ pleadings, and remand for further proceedings.

REVERSED AND REMANDED.

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PER CURIAM.

Defendants appeal from an order denying their motion to vacate a final judgment and order of default. For the following reasons, we reverse.

Following a failed business transaction, H.H. Dachiel sued defendants in 1988 on various causes of action. When defendants and their attorney failed to appear at a scheduled calendar call in October, 1991, the trial court issued an order to show cause why defendants’ pleadings should not be stricken. Unbeknownst to defendants, their attorney had been disbarred and had closed his practice. At the hearing on the order to show cause, neither defendants nor their attorney appeared. The trial court struck defendants’ pleadings and, on the same day, conducted a bench trial on damages. Judgment was entered for the plaintiff for $496,175.34. Defendants learned of the final judgment upon being served with a subpoena of taking deposition in aid of execution, and retained counsel to move to vacate or set aside the final judgment. The trial court denied the motion.

“The ordinary result of a failure to attend a special call of a trial calendar is to [578]*578subject oneself to a setting of the cause for trial without opportunity to object.” Byron Holding Corp. v. Cohen, 284 So.2d 412, 413 (Fla. 3d DCA 1973). Here, however, defendants had their pleadings stricken and a substantial default judgment entered against them. This case “does not present the extreme case required to justify a sanction as severe as striking the pleadings.” Rosenberg v. Miller, 453 So.2d 885, 886 (Fla. 3d DCA 1984). See also World on Wheels, Inc. v. International Auto Motors, Inc., 569 So.2d 836 (Fla. 3d DCA 1990).

Accordingly, we reverse the final judgment and the order striking the defendants’ pleadings, and remand for further proceedings.

REVERSED AND REMANDED.

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Bluebook (online)

605 So. 2d 577, 1992 Fla. App. LEXIS 10230, 1992 WL 240657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evangelos-v-dachiel-fladistctapp-1992.

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