JAX SANI SERVA SYSTEM, INC., A CORPORATION, APPELLANT,
v.
RONALD E. BURKETT, INDIVIDUALLY AND D/B/A WORKING MAN SEPTIC TANK COMPANY, APPELLEE
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Jax Sani Serva System appeals a circuit court order setting aside a default judgment against Ronald Burkett for nonpayment. The appellate court affirmed, holding that excusable neglect can be grounded in the psychological condition of the party seeking relief, particularly where the party's wife suffered emotional trauma from a stillborn adoption that prevented her from processing legal documents served upon her.
The court affirmed the circuit court's order, holding that excusable neglect can be grounded on the psychological condition of the party seeking relief. The court rejected the rationale of John Crescent, Inc. v. Schwartz and distinguished that case on the ground that the wife was not a party to the action and was not the party seeking relief, and that relief due to excusable neglect need not be limited to misconduct or negligence of third parties.
[1] A party's illiteracy, while generally not a basis for setting aside a judgment on grounds of excusable neglect, may be considered if it prevented the party from discoveri…
[2] Excusable neglect can be grounded on the psychological or emotional condition of the party seeking relief from a judgment.
Previewing 2 of 4 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“Even illiteracy does not excuse one from using diligence to ascertain correctly the contents of a notice duly served.”
Establishes the general rule that illiteracy alone is insufficient ground for excusable neglect.
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Join FLexlaw to unlock all legal intelligenceJax Sani Serva System filed a complaint against Burkett for $9,166 in unpaid amounts. After default was entered, Burkett moved to set it aside approxi…
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ERVIN, Judge.
This case is an appeal of an order of the circuit court granting a motion to set aside a default judgment. We affirm.
Appellant filed a complaint against Ronald E. Burkett for damages, based on the failure of appellee to pay appellant a sum totaling $9,166. A motion for default was filed by appellant, and default was entered. Approximately two weeks later, appellee filed an answer and a motion to set aside the default and final judgment. The motion’s grounds for excusable neglect were as follows:
A. That on March 18, 1986, Defendant and his Wife learned that the child they were going to adopt was bom stillborn.
B. That because of the disappointment and shock, Defendant’s Wife became emotionally and physically sick for a period of several weeks.
C. That during this period, Defendant’s Wife was served with a Summons and Complaint, however, she was not informed of their contents.
D. That Defendant is illiterate and was unaware of the contents of the paper served upon his Wife.
2. That upon receiving in the mail a copy of the Final Judgment from Circuit Judge Laurence D. Fay, Defendant brought the Final Judgment to the undersigned attorney and asked him what the Final Judgment meant.
3. That Defendant has a meritorious defense to Plaintiff’s Complaint as reflected in the attached Answer, Affirmative Defense and Motion to Transfer for Improper Venue.
The circuit court subsequently entered an order granting defendant’s motion to set aside default and final judgment.
We initially observe that illiteracy generally does not provide a basis to set aside a judgment on the ground of excusable neglect. The general rule is that mere negligence or inattention of a party is no ground for vacating a judgment. See 46 Am.Jur.2d Judgments § 718 (1969). “Even illiteracy does not excuse one from using diligence to ascertain correctly the contents of a notice duly served.” Snow v. Conley, 113 Ga.App. 486, 148 S.E. 2d 484 (Ga.Ct.App.1966). Illiteracy can be taken into account if it prevents a person who did not discover that legal proceedings had been taken against him until after the rendition of a judgment. Cota v. Southern Arizona Bank and Trust Co., 17 Ariz.App. 326, 497 P. 2d 833, 834 (Ariz.Ct.App.1972). There is, however, no showing in the instant case that the appellant could not speak English.
The lower court’s finding of excusable neglect was, however, also grounded on the emotional condition of the wife resulting from the death of a child whom the couple had planned to adopt. Appellant argues that John Crescent, Inc. v. Schwartz, 382 So. 2d 383, 384 (Fla. 4th DCA 1980) dictates reversal. In John Crescent, Inc., the court reversed the vacating of a judicial sale, as well as the setting aside of the certificate of title, finding that the failure of the wife to comprehend and act upon the service of process made upon her, because of “an emotional condition of unresolved anxiety”, did not constitute excusable neglect. Id. at 385-86. The court considered that relief due to excusable neglect can only be granted because of “the misconduct, wrongdoing or negligence of someone other than the party seeking relief.” Id. at 386.
We decline to follow the rationale in John Crescent, Inc. We first observe that in the instant case — unlike the situation in John Crescent, Inc. — the wife was not made a party to the action and was not the party seeking relief. Additionally, we are of the view that excusable neglect can be grounded on the psychological condition of the party seeking relief. Cf. Leinberger v. Lienberger, 455 So. 2d 1140, 1141 (Fla. 2d DCA 1984), wherein the court, observing that appellant was unable to care for herself, due to psychosis, concluded that “[t]he illness makes it questionable whether it was proper to grant the default....”
AFFIRMED.
SMITH, C.J., and BOOTH, J., concur.
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Paul v. Wells Fargo Bank, N.A., 68 So. 3d 979 (Fla. 2d DCA 2011)…38 So. 2d 380, 383 (Fla. 2d DCA 1962) (holding no abuse [*985] of discretion to set aside default judgment for excusable neglect based on defendant’s affidavit that he failed to answer complaint due to illness); Jax Sani Serva Sys., Inc. v. Burkett, 509 So. 2d 1251, 1252 (Fla. 1st DCA 1987) (holding default judgment could be set aside for excusable neglect where defendant was illiterate and wife was emotionally ill when served with process) (citing Leinberger). We stress, however, that as we understand them Mr…
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Franklin v. Lizzie Franklin, 573 So. 2d 401 (Fla. 3d DCA 1991)…law read it to him. Thus, the “excusable neglect” required to set aside the judgment under the rules relating to defaults and under Florida Rule of Civil Procedure 1.540(b)(1) generally is clearly present. See Jax Sani Serva System, Inc. v. Burkett, 509 So. 2d 1251, 1252 (Fla. 1st DCA 1987); Fratus v. Fratus, 467 So. 2d 484 (Fla. 5th DCA 1985); cf. West v. West, 534 So. 2d 893 (Fla. 5th DCA 1988); Canney v. Canney, 453 So. 2d 179 (Fla. 2d DCA 1984). Nor is there any question that there is a “meritorious defens…
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Urbanek v. R.D. Schmaltz, Inc., 573 So. 2d 107 (Fla. 4th DCA 1991)…denied, Peterson v. John Crescent, Inc. v. Belmont Holding Corp., 389 So. 2d 1113 (Fla.1980), mandamus granted, 401 So. 2d 1150 (Fla. 4th DCA 1981), rev. denied, 412 So. 2d 469 (Fla.1982), declined to follow by Jax Sani Serva Sys., Inc. v. Burkett, 509 So. 2d 1251 (Fla. 1st DCA 1987). The Schwartz court stated: The failure of a party to take the required steps necessary to protect its own interests, cannot, standing alone, be grounds to vacate judicially authorized acts to the detriment of other innocent par…
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
- John Crescent, Inc. v. Schwartz, 382 So. 2d 383 (Fla. 4th DCA 1980)
- Leinberger v. Leinberger, 455 So. 2d 1140 (Fla. 2d DCA 1984)