WARREN FLAXMAN, APPELLANT,
v.
METROPOLITAN LIFE INSURANCE COMPANY, APPELLEE
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PER CURIAM.
This interlocutory appeal is from an order setting aside a default and final judgment upon the motion of the defendant. The discretion of the trial court upon such an order is well-established. See North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Holiday Ranch, Inc. v. Roudabush, 171 So. 2d 558 (Fla.2d DCA 1965); Gacl, Inc. v. Zeger, 276 So. 2d 552 (Fla.3d DCA 1973). The instant case has the additional factor that the cause had proceeded to final judgment.
The trial judge’s exercise of discretion in this case is supported by the fact that the defendant explained the loss of the summons and complaint and tendered an affidavit of good defense. See Renuart-Bailey-Cheely Lumber and Supply Co. v. Hall, 264 So. 2d 84 (Fla.3d DCA 1972); and North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). A further equitable consideration appears from the fact that the plaintiff’s attorney was actively in contact with the defendant, relative to the claim, after he had filed suit, and the fact of the filing of the suit was not disclosed to defendant. In addition, the plaintiff, at trial, amended his complaint on the damage issue in order to increase the damages allowable.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)….3d DCA 1979); Salomon v. Mid-States Mortgage Corp., 356 So. 2d 915 (Fla.3d DCA 1978); Garcia Insurance Agency, Inc. v. Diaz, supra; Traveler’s Insurance Co. v. Bryson, 341 So. 2d 1013 (Fla. 4th DCA 1977); Flaxman v. Metropolitan Life Insurance Co., 340 So. 2d 515 (Fla.3d DCA 1976); Associated Medical Institutions, Inc. v. Imperatori, 338 So. 2d 74 (Fla.3d DCA 1976); Espinosa v. Racki, 324 So. 2d 105 (Fla.3d DCA 1975); Plotkin v. Deatrick Leasing Co., 267 So. 2d 368 (Fla.3d DCA 1972); Renuart-Bailey-Cheely Lu…1 / 2
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Garcia Ins. Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977)…de the default judgment. Other cases where the liberal approach of Barber was followed — but where the district court of appeal in question affirmed the lower court’s vacating of a default judgment — were: Flaxman v. Metropolitan Life Insurance Co., 340 So. 2d 515 (Fla. 3d DCA 1976); and, Plotkin v. Deatrick Leasing Co., 267 So. 2d 368 (Fla. 3d DCA 1972). An analysis of the various decisions strongly suggests that a greater showing is required to reverse the trial court’s granting of a motion to vacate defau…
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Miami-Dade Cnty. v. Coral BAY Section C Homeowners Ass'n, Inc., 979 So. 2d 318 (Fla. 3d DCA 2008)…3d DCA 1979); Salomon v. Mid-States Mortgage Corp., 356 So. 2d 915 (Fla. 3d DCA 1978); Garcia Insurance Agency, Inc. v. Diaz, supra; Travelers Insurance Co. v. Bryson, 341 So. 2d 1013 (Fla. 4th DCA 1977); Flaxman v. Metropolitan Life Insurance Co., 340 So. 2d 515 (Fla. 3d DCA 1976); Associated Medical Institutions, Inc. v. Imperatori, 338 So. 2d 74 (Fla. 3d DCA 1976); Espinosa v. Racki, 324 So. 2d 105 (Fla. 3d DCA 1975); Plotkin v. Deatrick Leasing Co., 267 So. 2d 368 (Fla. 3d DCA 1972); Renuart-Bailey-Cheel…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- LaNorris Hobbs v. State, 264 So. 2d 84 (Fla. 1st DCA 1972)
- Jessie Marlow et ux. v. Bodiford, 276 So. 2d 552 (Fla. 1st DCA 1973)
- Holiday Ranch, Inc. v. Roudabush, 171 So. 2d 558 (Fla. 2d DCA 1965)