HORN & HARDART, FLORIDA, INC., PETITIONER,
v.
JOHN A. DIETZ, RESPONDENT

Fla. 4th DCA | 1982-07-14
No. 82-876
BERANEK and DELL, JJ., concur., ANSTEAD, J., dissents without opinion.
417 So. 2d 1039 Florida District Court of Appeal, Fourth District (1982) Positive Treatment
Cited by 4 cases
Topics
Discretionary Rulings Scope Of Appellate Review Meritorious Defense Common Law Certiorari

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is a petition for common law certiorari. We conclude that a departure from the essential requirements of law has been demonstrated, grant the writ, and quash the order below. This case began in County Court and after service upon the defendant, a default occurred due to defense counsel’s failure to appear at a preliminary hearing. The County Court vacated the default finding excusable neglect and a meritorious defense. The Circuit Court reversed the County Court concluding that excusable neglect was not demonstrated as a matter of law. The matters presented to the trial court were essentially factual in nature, and it was up to the trial court (the County Court Judge) to make a determination of excusable neglect. This ruling is a discretionary one, and we conclude that the Circuit Court sitting in its appellate capacity erroneously substituted its judgment for that of the factual finder. The Circuit Court thus exceeded its scope of review.

Certiorari is hereby granted, the order of the Circuit Court quashed, and the matter remanded to the County Court for further proceedings.

BERANEK and DELL, JJ., concur. ANSTEAD, J., dissents without opinion.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Combs v. State, 420 So. 2d 316 (Fla. 5th DCA 1982)
    …trial judge fails or refuses to perform that duty. Id. at 642. Even the Fourth District has not limited the scope of its certiorari review in the narrow fashion indicated in City of Winter Park v. Jones. In Horn & Hardart, Florida, Inc., v. Dietz, 417 So. 2d 1039 (Fla. 4th DCA 1982), the court granted certiorari and quashed the order of the circuit court sitting as an appellate court, because the circuit court had reversed an order of the county court which had vacated a default on the finding of excusable n…
  • Wiley R. Reynolds, III v. Teeters Bros. Contracting Co., 460 So. 2d 575 (Fla. 4th DCA 1984)
    …of any claims due one party from the other. Having made such a determination, we are without authority to disturb the rulings of the trial court challenged on appeal, regardless of our own views on the issues. Horn & Hardart, Florida, Inc. v. Dietz, 417 So. 2d 1039 (Fla. 4th DCA 1982). ANSTEAD, C.J., and DOWNEY . and GLICKSTEIN, JJ., concur.…

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