C.E. PETERS LANDCLEARING, INC., APPELLANT,
v.
ERIC R. GOSSINGTON, AND PAUL EDWARD CARLISLE, JR., APPELLEES
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C.E. Peters Landclearing appealed a trial court order denying its motion to vacate a default judgment. The Fourth District Court of Appeal affirmed, holding that the insurance claims examiner's affidavit failed to adequately establish excusable neglect because it contained only legal conclusions without factual support.
The court affirmed the denial of the motion to vacate, holding that the affidavit's assertion of excusable neglect in paragraph 7 consisted only of legal conclusions without factual specificity, leaving the trial court to speculate on the actual reasons the papers were not forwarded and thus failing to satisfy the requirement of establishing excusable neglect under Florida Rule of Civil Procedure 1.540(b).
[1] A motion to vacate a default judgment must be supported by factual allegations demonstrating excusable neglect, not mere legal conclusions.
[2] An affidavit asserting excusable neglect must provide specific facts to allow a court to determine whether the neglect was indeed excusable.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We have emphasized paragraph 7 because it contains nothing more than legal conclusions of affiant, leaving the trial court to speculate upon an infinite number of facts to explain why the papers were not forwarded, and no sworn explanation upon which to conclude excusable neglect to exist.”
Establishes the core holding that conclusory legal assertions are insufficient to support a motion to vacate default judgment; specific facts must be provided.
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Join FLexlaw to unlock all legal intelligenceC.E. Peters Landclearing's insurance company, Utica Mutual Insurance Company, received notice of a lawsuit and the claims examiner initiated settlemen…
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GLICKSTEIN, Judge.
This is an appeal from the trial court’s order, denying defendant/appellant’s motion to vacate a default judgment. We affirm.
The claims examiner of appellant’s insurer submitted an affidavit in an effort to vacate the default, asserting:
1. I, DEBORAH WARD, am claims examiner for Utica Mutual Insurance Company, who insures the Defendant, C.E. PETERS LANDCLEARING, INC., in this action.
2. Our insured, C.E. PETERS LAND-CLEARING, INC., did what was required under the policy as far as advising Utica Mutual Insurance Company of the pending claim against them and the eventual service of suit papers in this action.
3. I initiated communications with Plaintiff’s counsel in an attempt to settle this matter obtaining an extension of time to file responsive pleadings pending our settlement negotiations.
4. I offered our policy limits in full settlement of this claim and this was not accepted by Plaintiff. Several further discussions were held regarding the obtaining of financial affidavits from C.E. PETERS LANDCLEARING, INC. as well as discussions regarding the possibility of a structured settlement using policy limits.
5. Plaintiff’s counsel, by letter, advised me that it would be necessary to file responsive pleadings by April 12, 1985.
6. Following that date, I had no further communications with Plaintiff’s counsel.
7. Due to oversight, excusable neglect, and/or inadvertance [sic], suit papers and file were not forwarded to our defense counsel, GEORGE P. SU-PRAN, of the law firm of JONES & FOSTER, P.A., with appropriate instructions to file responsive pleadings.
8. I was first advised of the Default against C.E. PETERS LANDCLEAR-ING, INC. by Attorney George Supran of JONES & FOSTER, P.A., on June 12, 1985.
9. I was not advised of the entry of the Default by Plaintiff’s counsel at any time prior to that. [Emphasis added.]
We have emphasized paragraph 7 because it contains nothing more than legal conclusions of affiant, leaving the trial court to speculate upon an infinite number of facts to explain why the papers were not forwarded, and no sworn explanation upon which to conclude excusable neglect to exist. See B. C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981). Some facts would have plainly constituted excusable neglect. An equal number of scenarios would just as clearly not be.
In contrast to this case is the recent decision in S.B. Partners v. Holmes, 479 So. 2d 280 (Fla. 2d DCA 1985); and, as held in Edwards v. City of Fort Walton Beach, 271 So. 2d 136 (Fla.1972), the facts of each case peculiarly determine whether relief under Florida Rule of Civil Procedure 1.540(b) should be granted.
DOWNEY and DELL, JJ., concur.
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Eagle FL VI SPE, LLC v. T & A Fam. P'ship, Ltd., 177 So. 3d 1277 (Fla. 2d DCA 2015)…dgment as a mistake of fact, the legal effect of the assignment was a question of law. The affidavits only contain legal conclusions, which are insufficient to support setting aside the stipulations. See C.E. Peters Landclearing, Inc. v. Gossington, 487 So. 2d 319, 320 (Fla. 4th DCA 1986); see also Heitmeyer v. Sasser, 664 So. 2d 358, 360 (Fla. 4th DCA 1995) (determining that affidavits containing general statements framed in terms of conclusions of law are insufficient to raise a genuine issue of material fa…
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Mitrany v. Chase Fed. Sav. & Loan Ass'n, 590 So. 2d 509 (Fla. 4th DCA 1991)…ly $1500 with no strings attached. The trial court took this case and did what it perceived to be equity. We agree with the trial court’s decision to grant the bank’s motion for post-judgment relief, following C.E. Peters Landscaping v. Gossington, 487 So. 2d 319 (Fla. 4th DCA 1986) (particular circumstances of the case determine whether relief under rule 1.540 is [*511] appropriate). We also believe that the appellant, having obtained relief which will make him whole, has received equity. In short, the app…
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Bil-Jax, Inc. v. Williamson, 497 So. 2d 1350 (Fla. 4th DCA 1986)…l court to attempt to find facts which constitute excusable neglect by the New York attorney from these two affidavits. There is no sworn explanation upon which to conclude excusable neglect existed. See C.E. Peters Landclearing, Inc. v. Gossington, 487 So. 2d 319 (Fla. 4th DCA 1986). Furthermore, a reasonable and credible explanation was not presented to the trial court as required by Somero v. Hendry General Hospital, 467 So. 2d 1103 (Fla. 4th DCA 1985). DELL and STONE, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)
- Kit C. Edwards v. City OF Fort Walton Beach, 271 So. 2d 136 (Fla. 1972)
- S.B. P'rs v. Holmes, 479 So. 2d 280 (Fla. 2d DCA 1985)