(813) 455-4551

Motion to Set Aside

by | Apr 10, 2016 | Legal | 0 comments

Motion to Set Aside Default

Fla. R. Civ. P. 1.500(d) provides a party an opportunity to request the Court set aside a default in accordance with Fla. R. Civ. P. 1.540(b). The Court may relieve a party from a final judgment, decree, order, or proceeding for, inter alia, excusable neglect. Florida law also requires that the party seeking relief under Rule 1.540(b) demonstrate a meritorious defense. America’s Yate de Costa Rica v. Armco Mfg., Inc., 82 So.3d 882, 885 (Fla. 4th DCA 2011). Finally, more courts are requiring the movant to establish it acted with due diligence in seeking relief from the default. Goodwin v. Goodwin, 559 So.2d 109 (Fla. 2nd DCA 1990).

Excusable Neglect

The first element for a moving party to set aside a default judgment is to demonstrate a legal excuse for not complying with the civil procedure rules. See Schauer v. Coleman, 639 So.2d 637 (Fla. 2nd DCA 1994) citing Kapetanopoulos v. Herbert, 449 So.2d 947, 949 (Fla. 2nd DCA 1984). The facts establishing excusable neglect must be set forth in a sworn document. See Schauer citing DeRuyter v. State, 521 So.2d 135, 136 (Fla. 5th DCA 1988), disapproved on other grounds, 605 So.2d 56 (Fla.1992).

File Affidavit

A motion to set aside is defective if it fails to provide sworn statements or affidavits of excusable neglect. Unsworn assertions of excusable neglect are insufficient because, by itself, an attorney’s motion is not evidence. The individual that made the mistake causing the problem should provide the affidavit. The affidavit could be from the secretary stating he or she misfiled the document.

Demonstrate Excusable Neglect

This is the excuse that, convinces the court, caused the problem that resulted in the adverse ruling. It is hard to say what is a good excuse, but there are some that are insufficient. For instance, a Defendant once claimed as a reason for not providing any Answer or Motion to Dismiss the Amended Complaint was because a Motion to Dismiss was still pending on the original Complaint. An Amended Complaint replaces the original complaint and, hopefully, resolved issued that were described in the Motion to Dismiss. The court considered this an attorney’s error.

Attorney errors, even if constituting mistakes of law, tactical errors, or judgmental mistakes, do not constitute excusable neglect. See Geer v. Jacobsen, 880 So.2d 717 (Fla. App., 2004) citing Fla. High Sch., Activities, Inc. v. Latimer, 750 So.2d 762, 763 (Fla. 3d DCA 2000). In Latimer, the attorney did not respond to an amended complaint because he had served a motion for extension of time and a notice of appearance directed at the original complaint. The court found those documents were insufficient to constitute a response to the amended complaint.
An attorney’s inadvertence or ignorance of the rules does not constitute excusable neglect. See Geer v. Jacobsen, citing Spencer v. Barrow, 752 So.2d 135, 138 (Fla. 2nd DCA 2000).

Also, excusable neglect has only been found where a single event caused the failure creating a need to set aside a default. Repeated failures crosses the line fro mistakes to negligence or incompetence. Here are some examples of mistakes that have been accepted by the courts:

  • Sterling v. City of West Palm Beach, 595 So.2d 284 (Fla 4th DCA 1992)(where excusable neglect was a “Diary error”)
  • Wood v. Fortune Ins. Co., 453 So.2d 451 (Fla. 4th DCA 1984)(where responses were filed late because tickler system broke down.)
  • Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983)(where responsive pleading was late because a secretary clipped the summons and complaint to the wrong file.)
  • Florida Aviation Academy v. Charter Air Center, Inc., 449 So.2d 350 (Fla. 1st DCA 1984)(where an inexperienced secretary had failed to calendar the time when an answer to the complaint had to be filed.)
  • Al Hendrickson Toyota Inc. v. Michael Yamplosky, 695 So.2d 948 (Fla 4th DCA 1997)(where date for answers had inadvertently not been calendared.)
  • Bland v. Viking Fire Protection, Inc. of the Southeast, 454 So.2d 763 (Fla 2nd DCA, 1984)(where secretary misfiled the summons and complaint.)

Too often courts will accept any excuse and attorneys have taken advantage. In the Fourth DCA at least, Courts are cautioned that allowing for excusable neglect should not be construed as a license for indifference and inefficiency. Wood v. Fortune Ins. Co., 453 So.2d 451 (Fla. 4th DCA 1984).

Meritorious Defense

The second element for a moving party to set aside a judgment is to provide a meritorious defense. To obtain relief from a default judgment, the ultimate facts establishing the defense must be set forth in a verified answer, sworn motion, or affidavit, or by other competent evidence. Westinghouse Elevator Co., A Div. of Westinghouse Elec. Corp. v. DFS Constr. Co., 438 So.2d 125, 126-27 (Fla. 2d DCA 1983).

Before the Court can grant relief under Fla. R. Civ. P. 1.540(b), the Court must be apprised of the meritorious defense Defendant intends to plead. Merely filing an Answer that admits or denies the allegations is insufficient. Neither is a conclusory assertion that a meritorious defense exists is insufficient. See Geer v. Jacobsen, 880 So.2d 717 (Fla. App., 2004) citing Hill v. Murphy, 872 So.2d 919, 921 (Fla. 2d DCA 2003) (where the attorney in Geer did not file a pleading or an affidavit setting forth a meritorious defense. Instead, the motion simply contained the conclusory statement that a meritorious defense existed and that a motion to dismiss would be filed.)

This requirement prevents attorneys from needlessly delaying actions by claiming the existence of affirmative defenses and counterclaims to offset the plaintiff’s remedies but continually delay the production of any proof in support.

Due Diligence

The third element for a motion to set aside is to establish due diligence in seeking relief from the default. The courts have not defined due diligence creating a moving target. However, some guidance does exist.

In examining the reasonableness of a delay in seeking relief from a default a “rule of thumb” may be the period in which a defendant must file an answer, i.e., twenty days. See AllState Floridian Insurance Co. v. RonCo Inventions, LLC, 890 So.2d 300 (Fla. 2nd DCA 2004) citing Techvend, Inc. v. Phoenix Network, Inc., 564 So.2d 1145 (Fla. 3d DCA 1990). The Second DCA has not accepted the twenty-day limit as a bright line rule but has used it to provide a starting point for an analysis of due diligence.

The court in AllState looked to the affidavits filed with the motion to set aside. The Appellee’s affidavit in AllState did not state they had not received notice of the default. So the notice was timely served. The party simply did not respond to the notice for seven weeks.

The court in AllState then looked to the reason provided within the affidavits. Appellee’s representative in AllState stated he was busy with a new project. The court in AllState found the fact that Appellee’s representative was too busy with a new project only added to the unreasonableness of the seven-week delay. The court let stand the default judgment.

AllState demonstrates the need to file a motion to set aside as soon as possible, But if there is a delay, that delay must also have its own excusable neglect, separate and distinct from the excusable neglect associated with the default. The reason is obvious. If both delays were from the same problem, that excuse has shifted from a single accident to negligent conduct.

Abuse of Discretion

Florida courts have a preference for deciding cases on the merits of the claims rather than on a technicality. J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66 (Fla. 4th DCA 2008). In the instances where the trial court denied a relief from judgment, the determination was reviewed for an abuse of discretion.” SunTrust Bank v. Puleo, 76 So. 3d 1037 (Fla. 4th DCA 2011).

For a court to deny a motion to set aside, the appellate court would look towards the lower court’s decision for abuse of discretion. The factors would be excusable neglect, meritorious defense and due diligence.

The definition of an abuse of discretion has been provided by the Florida Supreme Court in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980):

Discretion … is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable men would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

If the motion contains an excusable neglect, meritorious defense or due diligence, the court would most likely grant the motion to set aside. It would only be in the absence of all three that the court may deny the motion to set aside. But even that is not always true. Then the decision becomes moving forward or trying to prevail on appeal.

Conclusion

To be proper, a party’s motion to set aside must contain the mechanics of a motion under Rule 1.540(b). In summary:

  • A party must provide any Excusable Neglect;
  • A party must provide Affidavits;
  • A party must provide a Meritorious Defense; and
  • A party must establish Due Diligence in seeking relief.

No reasonable person (or judge) would deny a motion to set aside that contains these four components.