Civil Litigation
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Total Default Cases: 12
A subcontractor brought a breach of contract suit against a contractor for failure of contractor to pay for work performed, and the trial court entered a default judgment for the subcontractor. The contractor moved to set aside this judgment on the basis that the subcontractor failed to state a claim, but the trial court denied that motion. The district court reversed holding that where the contract contained several conditions precedent to the subcontractor receiving payment and the subcontractor had not alleged anything regarding any condition precedent, the complaint failed to state a claim, the default judgment was void (not based on any procedural errors or irregularities, but on a fatally defective complaint), and the trial court abused its discretion in not setting it aside.
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D
27 Fla. L. Weekly D1741 (Fla. 4th DCA August 9, 2002)
2002-08-09
DEFAULT
The Fourth District Court of Appeal affirmed the trial court
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In Florida, sovereign immunity extends to certain private parties who are involved in contractual relationships with the State, if such parties are agents of the state. Whether such contracted parties are agent of the states is determined by the degree of control retained or exercised by the state agency. Furthermore, workers
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Anderson v. King
27 Fla. L. Weekly D1394 (Fla. 2nd DCA June 21, 2002)
2002-06-21
DEFAULT
Pursuant to
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A referee of the Florida Bar recommended that respondent attorney be found guilty of ethical breaches based on her conduct during a deposition. During a deposition, respondent
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Marrero v. Corcino
27 Fla. L. Weekly D880 (Fla. 4th DCA April 26, 2002)
2002-04-26
DEFAULT
Summary judgment may be entered if there are no genuine issues of material fact shown in the pleadings, depositions, or admissions on file, together with affidavits. In determining the issue of a genuine question of fact, the courts will look "in the light most favorable to the non-moving party." Under Fla. R. Civ. P. 1.510(e), affidavits must set forth facts admissible into evidence and profess personal knowledge establishing that the affiant is competent to testify to the material. The court also has the discretion to strike insufficient portions of such affidavits. The affiant in this case, a party to an automobile accident, made specific statements expressing opinions about technical issues such as speed approximations and tire skid mark lengths. The court found these assertions to be sufficient in establishing a genuine issue of fact and worthy of jury determination.
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Summary judgment may be entered if there are no genuine issues of material fact shown in the pleadings, depositions, or admissions on file, together with affidavits. In determining the issue of a genuine question of fact, the courts will look "in the light most favorable to the non-moving party." Under Fla. R. Civ. P. 1.510(e), affidavits must set forth facts admissible into evidence and profess personal knowledge establishing that the affiant is competent to testify to the material. The court also has the discretion to strike insufficient portions of such affidavits.
The affiant in this case, a party to an automobile accident, made specific statements expressing opinions about technical issues such as speed approximations and tire skid mark lengths. The court found these assertions to be sufficient in establishing a genuine issue of fact and worthy of jury determination.
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An insurance carrier defaulted on an uninsured motorist claim case in which the plaintiff alleged that the policy limits were $50,000 even though the policy limits were $25,000. Plaintiff obtained a default judgment in excess of $1 million. Consequently, the insurance carrier challenged the judgment. The appellate court reversed, finding that the judgment should not have exceeded $50,000 since the policy limits represented the maximum amount that the judgment could have been, even in default.
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The appellate court held that it was an abuse of discretion for the lower court to enter a default against the defendant for his failure to attend a status conference without making an explicit finding that the failure to attend was willful.
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It is an abuse of discretion to deny a motion to set aside default where failure to timely respond to a complaint was the result of excusable neglect and the defendant showed a meritorious defense and due diligence in acting after the discovery of default. An order denying a motion to vacate a default is reviewed under an abuse of discretion standard while an order granting a motion to vacate default is reviewed under a gross abuse of discretion standard.
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The trial court abused its discretion by denying a motion to set aside a clerk
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Since the motion to set aside final default judgment consisted merely of unsworn representations of counsel, unsupported by proof showing excusable neglect, and the only evidence before the court refuted these representations, the lower court abused its discretion by granting the motion.
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