Geer v. Jacobsen
2004 WL 1057735, 880 So. 2d 717 (2004)
Rule of Law:
A trial court abuses its discretion by vacating a default and default judgment when the moving party fails to present sworn evidence of excusable neglect and specific, non-conclusory grounds for a meritorious defense.
Facts:
- Paula Geer initiated a lawsuit seeking damages.
- Brian James Almengual and Almengual & Warner, P.A. (Almengual) served a notice of appearance and a motion for extension of time, but did not specify the duration of the extension, schedule a hearing for the motion, or otherwise respond to Geer's initial complaint.
- Paula Geer subsequently served an amended complaint.
- Almengual failed to file any response to the amended complaint within the prescribed timeframe.
Procedural Posture:
- Paula Geer filed a lawsuit for damages against Brian James Almengual, David Neal Jacobsen, and Almengual & Warner, P.A. in trial court.
- Almengual served a notice of appearance and a motion for extension of time.
- Geer served an amended complaint.
- Geer served a motion for the trial court to enter a default after Almengual failed to respond to the amended complaint.
- The trial court entered a default against Almengual.
- Geer served a motion for a default judgment.
- The trial court entered a default judgment in Geer's favor.
- Almengual served an unsworn motion to set aside or vacate default and, two days later, an unsworn motion to set aside or vacate default judgment.
- The trial court conducted a hearing on Almengual's motions, where Almengual's attorney testified.
- The trial court entered an order setting aside the default and judgment.
- Paula Geer appealed the trial court's non-final order setting aside the default and default judgment to the District Court of Appeal of Florida, Second District, as Appellant, with Almengual and Jacobsen as Appellees.
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Issue:
Does a trial court abuse its discretion by setting aside a default and default judgment where the movant fails to provide sworn statements or sufficient specific evidence of excusable neglect and a meritorious defense?
Opinions:
Majority - Silberman, J.
Yes, a trial court abuses its discretion by setting aside a default and default judgment where the movant fails to provide sworn statements or sufficient specific evidence of excusable neglect and a meritorious defense. The court first affirmed that the default and default judgment against Almengual were properly entered because Almengual's initial filings were not responsive pleadings, allowing Geer to file an amended complaint as a matter of course. Almengual's subsequent failure to respond to the amended complaint within ten days, as required by Rule 1.190(a), justified the entry of default and default judgment. To vacate a default and judgment under Florida Rule of Civil Procedure 1.540, the movant must demonstrate excusable neglect, a meritorious defense, and due diligence. Almengual failed to establish either excusable neglect or a meritorious defense. Excusable neglect requires proof by sworn statements or affidavits, and Almengual's motions were unsworn. The attorney's testimony, stating he was under the 'wrong impression' regarding the need to respond to the amended complaint, was insufficient because an attorney's errors, mistakes of law, tactical errors, judgmental mistakes, inadvertence, or ignorance of rules do not constitute excusable neglect. For a meritorious defense, it must be asserted by a pleading or in an affidavit, and a general denial or conclusory assertion is insufficient. If relying on a factual defense, ultimate facts must be set forth in a verified answer, sworn motion, affidavit, or competent evidence. If a legal defense, specific legal grounds must be shown. Almengual's motions and attorney's testimony provided only conclusory statements (e.g., Geer's claim was frivolous, no basis for fees) without detail or explanation, which were deemed insufficient to establish a meritorious defense. Therefore, the trial court's decision to set aside the default and judgment constituted a gross abuse of discretion.
Analysis:
This case reinforces the stringent requirements for setting aside default judgments in Florida, clarifying that a defendant's attorney cannot rely on 'mistakes of law' or 'ignorance of rules' to establish excusable neglect, even given a general preference for cases to be decided on their merits. The ruling underscores the critical importance of specificity and sworn evidence when alleging excusable neglect and a meritorious defense. It provides a clear standard for trial courts and discourages vague or conclusory assertions, serving as a cautionary tale for attorneys regarding procedural diligence and the necessity of detailed evidentiary support for motions to vacate defaults.
