Excusable neglect or you just didn't act?

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 49

CASES FROM THE WEEK DECEMBER 11, 2020

TRIAL COURT ABUSED DISCRETION IN GRANTING RULE 1.540(b) MOTION TO VACATE DEFAULT JUDGMENT--MOVANT FAILED TO ESTABLISH ALL THREE PRE-REQUISITES: EXCUSABLE NEGLECT, DUE DILIGENCE, OR MERITORIOUS DEFENSE.

Rodriguez v. Falcones, 45 Fla. L Weekly D2689 (Fla. 3rd DCA December 2, 2020):

The plaintiff served the defendant with a complaint and a request for production on February 4, 2020. The next day, the defendant emailed the plaintiff’s attorney acknowledging service, and threatening to sue if he was not removed from the lawsuit.

Two days later, the defendant emailed the plaintiff directly, claiming that he had no involvement in the lawsuit. He also stated that his lawyers would “take care of it.” The defendant ultimately did not answer the complaint and the clerk entered a default against him.

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Despite having notice of the clerk’s default, the defendant failed to respond. A default final judgment was entered on March 15, 2020. Twenty-one days after the initial clerk’s default was entered, the defendant’s attorney entered an appearance and moved to vacate the default judgment, arguing that the court lacked subject matter jurisdiction. At the time, defendant did not argue excusable neglect.

The trial court denied the motion to vacate regarding subject matter jurisdiction. Ten weeks after the default final judgment was entered, the defendant then filed his second motion to vacate based upon excusable neglect under rule1.540(b).

The trial court held a non-evidentiary hearing and issued an order vacating the default final judgment. At that hearing, the defendant’s counsel asserted that the defendant failed to respond to the complaint and delayed in seeking relief from the final judgment due to business and family complications created by the pandemic.

While the plaintiff’s attorney argued the motion contained only general allegations, and failed to provide any factual or legal bases for vacating, the trial court wrote in its order that it found due diligence, excusable neglect, and meritorious defense, notwithstanding the failure of the court to make such findings at the hearing. The court granted the motion and accepted the late filed answer.

The Third District reversed. Even pursuant to review for a gross abuse of discretion, the Court found there were no oral findings or any written findings to support the legal conclusions contained within the order. In order to show excusable neglect, the moving party must produce sufficient “evidence of mistake, accident, excusable neglect or surprise as contemplated by rule 1.540(b) before the court’s equity jurisdiction may be invoked.” Without such evidence, trial court abuses its discretion if it vacates the default judgment.

As to the due diligence requirement, courts were still open at the time the defendant’s answer was due (in late February) and the defendant was being represented by his attorney in another litigation at that time. Absent sufficient allegations of some exceptional circumstances explaining the delay, the defendant’s ten-week delay after receiving notice showed a lack of due diligence.

Finally, a meritorious defense must be asserted either by a pleading or in an affidavit. A general denial is insufficient to demonstrate the existence of a meritorious defense. If a defendant is relying on a factual defense to obtain relief, the ultimate facts establishing that defense must be set forth in a verified answer, sworn motion or an affidavit, or by other competent evidence.

Here, the defendant’s pleadings made only general assertions that were not supported by the facts or the law, again failing to meet his burden for vacating the default judgment.