MARY HALL, APPELLANT,
v.
ELEANORE FLORENCE BYINGTON AND RINKER MATERIALS CORPORATION, APPELLEES
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Mary Hall appealed the trial court's order vacating a default judgment against her. The court reversed and remanded, holding that the defendant failed to properly establish excusable neglect for missing the answer deadline because the supporting motion was not truly sworn.
The court held that the defendant failed to establish excusable neglect because the supporting motion was not properly sworn; it contained qualified language insufficient to meet the legal requirement. While a meritorious defense was apparently alleged based on conflicting claims of widow status, the case was remanded for the attorney to establish excusable neglect under oath.
[1] To vacate a default judgment, a party must establish both excusable neglect by their attorney and a meritorious defense to the complaint.
[2] Excusable neglect must be established by a sworn pleading stating a legal excuse for noncompliance with procedural rules or by testimony under oath in support of an unswo…
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Join FLexlaw to unlock all legal intelligence“in order to vacate the default judgment, it was incumbent upon appellee to establish both excusable neglect by her lawyer and a meritorious defense to appellant's complaint”
Establishes the two-part test required to vacate a default judgment
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Join FLexlaw to unlock all legal intelligenceDefendant's attorney noted an incorrect date on his calendar for filing an answer to the original complaint, when there were two complaints to be answ…
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GLICKSTEIN, Judge.
This is an appeal from an order which set aside a default final judgment. We reverse and remand.
We start with the premise that in order to vacate the default judgment, it was incumbent upon appellee to establish both excusable neglect by her lawyer and a meritorious defense to appellant’s complaint. Bags By Ande, Inc. v. Schilling, 406 So. 2d 536 (Fla. 4th DCA 1981).
The former must be established by a sworn pleading which states a legal excuse for failure to comply with the rules of procedure or by testimony under oath in support of an unsworn motion. Flynt v. Flynt, 336 So. 2d 690 (Fla. 4th DCA 1976); Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So. 2d 281 (Fla. 4th DCA 1980), Hersey, J. concurring specially; B.C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981).
The latter must be established by ultimate facts alleged most appropriately in a proposed answer, Tremblay v. Marck, 378 So. 2d 855 (Fla. 4th DCA 1979) cert. denied, 389 So. 2d 1116 (Fla.1980), but may also be done by affidavit. Pedro Realty, Inc. v. Silva, 399 So. 2d 367 (Fla. 3d DCA 1981). The alleged excusable neglect in this case was the placing by the attorney on his diary of the incorrect date for the filing of the answer to the original complaint, there also having been filed an interpleader complaint to be answered on a later date. A lawyer’s failure to note a date properly on his calendar has been recognized as excusable neglect. Travelers Insurance Co. v. Bryson, 341 So. 2d 1013 (Fla. 4th DCA 1977); English v. Hecht, 189 So. 2d 366 (Fla. 3d DCA 1966).
However, there is neither a sworn motion in the record nor any testimony of the lawyer in this case attesting to that fact. The trial judge mistakenly believed the motion to be sworn, but on close examination of the lawyer’s oath, one sees the allegations were “true and correct to the best of his knowledge and belief.” Such a statement was insufficient because it is qualified, not positive. Hahn v. Frederick, 66 So. 2d 823 (Fla.1953); P & T Electric Co. v. Spadea, 227 So. 2d 234 (Fla. 4th DCA 1969); United Bonding Insurance Co. v. DuraStress, Inc., 243 So. 2d 244 (Fla. 2d DCA 1971).
As for the meritorious defense, although appellant has not favored us with a copy of the belated answer and cross-claim, appellee’s affidavit shows that she and appellant are both claiming to be the wife of the deceased and, therefore, the proper person to receive the funds originated by the decedent in the interpleader’s profit-sharing retirement plan. Thus, a meritorious defense has apparently been alleged.
Because of the trial judge’s mistaken belief that the lawyer’s deficient motion was sworn, the deficiency in this case was not corrected at the trial level. On remand, the lawyer should be required to establish his excusable neglect under oath to the satisfaction of the trial judge.
BERANEK and WALDEN, JJ„ concur.
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Citator
Cited By (17 total)
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Gibraltar Serv. Corp. v. Lone & Assocs., Inc., 488 So. 2d 582 (Fla. 4th DCA 1986)…emonstrate excusable neglect, the defendant must by affidavit or other sworn statement set forth facts explaining the mistake or inadvertence; a meritorious defense may be shown by either an unverified pleading or an affidavit. See Hall v. Byington, 421 So. 2d 817 (Fla. 4th DCA 1982), and cases cited therein. Here, appellants’ attorney supplied an affidavit, which was required, explaining how he came to miscalculate the due date of a responsive pleading. Appel [*585] lants asked that their attorney’s error b…
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DeRUYTER v. State, 521 So. 2d 135 (Fla. 5th DCA 1988)…Even assuming that the affidavit established excusable neglect, the appellant failed to show a meritorious defense. A meritorious defense may be shown by either an unverified pleading or an affidavit. Gibraltar, 488 So. 2d at 584; Hall v. Byington, 421 So. 2d 817 (Fla. 4th DCA 1982). A general denial is not a meritorious defense sufficient to set aside a default. Mission East Co. v. Wyszatycki, 362 So. 2d 87 (Fla. 3d DCA 1978). While the state argued below that a motion to dismiss is not a recognized vehicle…
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Hartford Fire Ins. Co. v. Controltec, Inc., 561 So. 2d 1334 (Fla. 5th DCA 1990)…on this point because the motion to set aside the default failed to allege legal grounds, or in any manner disclose facts, which would constitute a meritorious defense to Hartford’s obligation to pay money owed Controltec by Blais. Hall v. Byington, 421 So. 2d 817 (Fla. 4th DCA 1982); Perry v. University Cabs, Inc., 344 So. 2d 914 (Fla. 3d DCA 1977). Accordingly, we do not reach the issue of whether or not Hartford’s reliance on McMahan constituted excusable neglect. Following entry of the default, Controlte…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)
- Travelers Ins. Co. v. Daisey Q. Bryson and Salvatore DeLuca, 341 So. 2d 1013 (Fla. 4th DCA 1977)
- Pedro Realty Inc. v. Silva, 399 So. 2d 367 (Fla. 3d DCA 1981)
- Hahn v. Frederick, 66 So. 2d 823 (Fla. 1953)
- English v. Mary B. Hecht & the N. Forty Corp., 189 So. 2d 366 (Fla. 3d DCA 1966)
- Tremblay v. Marck, 378 So. 2d 855 (Fla. 4th DCA 1979)
- Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So. 2d 281 (Fla. 4th DCA 1980)
- United Bonding Ins. Co. v. Dura-Stress, Inc., 243 So. 2d 244 (Fla. 2d DCA 1971)
- P & T Elec. Co., Inc. v. Spadea, 227 So. 2d 234 (Fla. 4th DCA 1969)
- Flynt v. Flynt, 336 So. 2d 690 (Fla. 4th DCA 1976)