American Erectors, Inc. v. Hanie ( 1981 )

Carley, Judge,

concurring specially.

I concur wholeheartedly in Divisions 2 and 3 of the majority opinion. I also concur in Division 1 which finds an abuse of discretion by the trial court because of its refusal to open default under the circumstances of this case. Although appellate courts are, and should be, very reticent to substitute their judgment for that of the on-the-scene trial judge, I am constrained to agree that under the uncontradicted evidence showing “excusable neglect” and in view of the actual time sequence as shown by the record, the trial court erred in failing to open default. However, I feel it necessary to address an argument raised by appellees in their brief which, on its face, appears to require affirming the trial court’s refusal to open default. Appellees state: “Furthermore, Appellant American Erectors, Inc., cannot claim to be diligent when in January, 1978it received a copy of a co-defendant’s request for admissions (see Brief of Appellants, Part I, page 4). Not until approximately one year later,... did appellants seek to employ counsel and file defensive pleadings.” Were this contention borne out by the record, I think that the trial court would have had ample evidence before it to support its refusal to open default and there would be no basis for an appellate determination that the trial court had abused its discretion. It is true that appellants’ briefs — here and in the trial court — refer to a co-defendant’s discovery document served in January of 1978. However, the record clearly reveals that the request for admissions referred to was filed and served in December of 1978 shortly after the filing of appellees’ interrogatories directed to appellants which gave to appellants their first indication that the insurance company may not be defending the action on behalf of appellants. Appellants’ motions to open default were filed on January 17,1979. Accordingly, considering all of the circumstances of the case, and especially in view of the absence of any dispute over appellants’ affidavit recitation of the facts relied upon as showing excusable neglect, I believe that we have no alternative but to reverse the trial court’s order denying appellants’ motions to open default.