PETER STANWOOD HERRICK AND INGRID S. HERRICK, APPELLANTS,
v.
SOUTHEAST BANK, N.A., APPELLEE
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Mortgagors appealed a default foreclosure judgment, arguing that their retained attorney's unexplained failure to respond to the mortgagee's motions constituted excusable neglect and that the mortgagee's affidavits overstated the amount due. The court held that an attorney's unexplained negligence is not excusably neglectful and cannot serve as grounds for setting aside a default judgment, and that alleged miscalculations in the amount due do not constitute fraud or misrepresentation sufficient to warrant relief.
An attorney's unexplained failure to defend an action is not excusably neglectful and does not justify setting aside a default judgment, as clients must be held bound by their lawyers' actions and cannot secure relief on the ground that they reasonably hired a competent professional. Alleged miscalculations in the amount due do not constitute fraud or misrepresentation as required by the rules and case law for relief from judgment.
[1] A defendant relying on another to defend an action may seek relief from that person's failure to timely respond only if the neglect was excusable.
[2] A lawyer's totally unexplained failure to respond to motions for default and summary judgment, without filing defensive pleadings or appearing at a hearing, constitutes i…
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Join FLexlaw to unlock all legal intelligence“If a defendant, however reasonably, relies on another to defend an action against him, he may seek relief from the consequences of the latter's failure timely to do so only if that person has been excusably neglectful.”
States the governing standard for when reliance on another's defense work can justify relief from default
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Join FLexlaw to unlock all legal intelligenceThe defendants-mortgagors retained a lawyer to defend against a foreclosure action by Southeast Bank. The attorney made a formal appearance, apparentl…
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SCHWARTZ, Chief Judge.
If a defendant, however reasonably, relies on another to defend an action against him, he may seek relief from the consequences of the latter’s failure timely to do so only if that person has been excusably neglectful.1 National Premium Budget Plan Corp. v. All American Assurance Co., 389 So. 2d 324, 325 (Fla. 3d DCA 1980) (“Excusable neglect sufficient to warrant vacating a default is not shown by mere proof that the defendant relied upon another to defend the action.”).
In this case, the totally unexplained failure of the defendants-mortgagors’ retained lawyer,2 who had been properly noticed by the plaintiff-mortgagee of its motions for default and summary judgment, to respond by filing defensive pleadings, affidavits, or even by appearing at the hearing, was certainly neglectful. It was not, however, excusably so and thus does not justify setting aside the default and default judgment of foreclosure which as a result were entered against his clients.3 National Premium Budget Plan, 389 So. 2d at 324 (inexcusable neglect of lawyer); White v. Spears, 123 So. 2d 689 (Fla. 3d DCA 1960) (same); see Allen v. Wright, 350 So. 2d 111 (Fla. 1st DCA 1977) (inexcusable neglect of insurance company); compare Coastal States Mortgage Corp. v. Commonwealth Savings & Loan Association of Florida, 497 So. 2d 917 (Fla. 3d DCA 1986) (excusable neglect of attorney basis for setting aside default).
The defendants separately claim that the appellee’s supporting affidavits overstated the amount due on the mortgage and that they were thus entitled to relief from the judgment to that extent under Fla.R.Civ.P. 1.540(b)(3) (relief from judgment may be granted for “fraud ... misrepresentation or other misconduct”). See, e.g., Zimmerman v. Vinylgrain Industries of Jacksonville, Inc., 464 So. 2d 1353 (Fla. 1st DCA 1985); Lacore v. Giralda Bake Shop, Inc., 407 So. 2d 275 (Fla. 3d DCA 1981), and cases cited.
We find, however, that no fraud or misrepresentation, as required by the rule and the cited cases, has been demonstrated. At most, an arguable miscalculation was involved which may have constituted a defense if appropriately raised below, but does not permit setting aside the regularly entered judgment. See Lacore, 407 So. 2d at 277 (“We do not suggest that anytime a defendant fails to assert a meritorious affirmative defense of set-off, he may subsequently move for vacation of an adverse judgment under Rule 1.540(b)(3).”).
Affirmed.
. Of course, a meritorious defense and, almost invariably, due diligence in seeking relief from the default judgment or order are also required. Unlike excusable neglect, these elements seem to be present in this case.
. The attorney, who is not the appellants' present lawyer, made a formal appearance in the cause, apparently in order to negotiate a settlement, but never filed an answer or any other pleading or paper. When months went by with no progress toward resolution by the Her-ricks, the mortgagee Southeast, after due warning and appropriate notice to counsel, proceeded to obtain the default-final-summary-judgment of foreclosure which the appellants, through new counsel, then moved to set aside.
. Were the rule with respect to lawyers otherwise — that is, if the defendant could secure relief from the negligence of his lawyer on the ground that he, the client, acted “excusably" in hiring a competent professional to represent him — no litigation could ever be safely conducted or finally resolved. Instead, the client must be held bound by his lawyer’s actions. McArthur v. State, 303 So. 2d 359 (Fla. 3d DCA 1974).
While the attorney, in turn, is liable to the client for his conduct, it may not affect the rights of the party opponent. See Bury v. McIntosh, 540 F. 2d 835, 836 (5th Cir.1976) ("[T]he merits or demerits of an attorney's representation in a civil action are not grounds for invalidating a verdict.... Any relief [client] may receive will have to come in a separate action for damages against his counsel."); cf. Smiles v. Young, 271 So. 2d 798 (Fla. 3d DCA 1973), cert. denied, 279 So. 2d 305 (Fla.1973).
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Cited By (15 total)
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OLE, Inc. v. Yael Yariv, 566 So. 2d 812 (Fla. 3d DCA 1990)…oggin v. Barfield; see abo North Shore Hospital, Inc. v. Barber, and alternatively, on the basis that the unfair surprise to the defendants was dispositive on the issue of excusable neglect. .Plaintiff's reliance on Herrick v. Southeast Bank, N.A., 512 So. 2d 1029 (Fla. 3d DCA 1987), is misplaced. That case involved the application of the default rule where counsel has appeared in the action but fails to defend. The special considerations there involved are set forth in footnote 3. Id. at 1030. Likewise, in H…
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U.S. Bank Nat'l Ass'n v. Paiz, 68 So. 3d 940 (Fla. 3d DCA 2011)…t the hearing on the motion for summary judgment. We previously have reviewed the legal sufficiency of claims that the mortgagee overstated the amount due on a mortgage under a motion filed pursuant to rule 1.540. In Herrick v. Southeast Bank, N.A., 512 So. 2d 1029, 1030 (Fla. 3d DCA 1987), we stated that the rule required fraud or misrepresentation, not an arguable miscalculation. And in Freemon v. Deutsche Bank Trust Co. Ams., 46 So. 3d 1202, 1205 (Fla. 4th DCA 2010), the court stated that the rule re [*944]…
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Rinaldo Cruz v. Caribbean Spring Vill., 944 So. 2d 1161 (Fla. 3d DCA 2006)…rd to indicate that she personally engaged in misconduct. Absent such evidence, it was an abuse of discretion to dismiss the complaint as a sanction based solely on [the attorney’s] noncompliance.”). We distinguish Herrick v. Southeast Bank, N.A., 512 So. 2d 1029 (Fla. 3d DCA 1987), in which we affirmed the denial of a motion to set aside the default and default judgment, because the attorney there never filed any pleadings and failed to appear at a properly noticed motion for summary judgment. Additionally,…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Angell M. White and Anna White v. Spears, 123 So. 2d 689 (Fla. 3d DCA 1960)
- Smiles v. Young, 271 So. 2d 798 (Fla. 3d DCA 1973)
- Allen v. Wright, 350 So. 2d 111 (Fla. 1st DCA 1977)
- Martine Lacore v. Giralda Bake Shop, Inc., 407 So. 2d 275 (Fla. 3d DCA 1981)
- Ward D. Zimmerman v. Vinylgrain Indus. OF Jacksonville, Inc., 464 So. 2d 1353 (Fla. 1st DCA 1985)
- Atkins v. State, 303 So. 2d 359 (Fla. 3d DCA 1974)
- Nat'l Premium Budget Plan Corp. v. ALL Am. Assurance Co., 389 So. 2d 324 (Fla. 3d DCA 1980)
- Young v. Smiles, 279 So. 2d 305 (Fla. 1973)
- Gross v. Plastiline, Inc., 279 So. 2d 305 (Fla. 1973)
- Coastal States Mortg. Corp. v. Commonwealth Sav. & Loan Ass'n of Fla., 497 So. 2d 917 (Fla. 3d DCA 1986)