LUIS M. CABRAL, APPELLANT,
v.
DIVERSIFIED SERVICES, INC., D/B/A BUDGET RENT-A-CAR OF MIAMI, INC., APPELLEE
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Cabral appeals the denial of his motion for relief from a default judgment entered against him in a car rental dispute. The court reversed, finding that the complaint failed to state a cause of action, that Cabral demonstrated excusable neglect and a meritorious defense, and that attorney's fees were improperly awarded.
The court reversed, holding that: (1) despite the default judgment, a defendant may contest the sufficiency of the complaint, and Budget Rent-A-Car's complaint wholly failed to state a cause of action against Cabral; (2) the trial court abused its discretion in denying relief because Cabral demonstrated excusable neglect due to confusion from a related pending case and raised a meritorious defense; and (3) attorney's fees were improperly awarded under section 57.105 because Cabral did not raise defenses completely lacking justiciable issues of law or fact.
[1] A defendant against whom a default judgment has been entered may contest the sufficiency of the complaint to support the judgment.
[2] Excusable neglect for failing to respond to a lawsuit may be found where confusion arises from the pendency of two or more cases involving the same parties or related sub…
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Join FLexlaw to unlock all legal intelligence“despite the fact that a default judgment has been entered, the defendant is permitted "to contest the sufficiency of the complaint and its allegations to support the judgment."”
Establishes that even with a default judgment, a defendant may challenge whether the complaint states a valid cause of action
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Join FLexlaw to unlock all legal intelligenceBudget Rent-A-Car filed a complaint against Cabral and a codefendant seeking damages and attorney's fees. A default was entered against the defendants…
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PER CURIAM.
Cabral appeals an order denying his motion for relief from default judgment. We reverse.
Budget Rent-A-Car filed a complaint against Cabral and a codefendant seeking damages plus reasonable attorney’s fees. A default was entered against the defendants for failing to defend the action. Thereafter, the trial court entered final judgment. Almost nine months after the entry of the default judgment, Cabral filed a motion for relief from default judgment. Cabral’s motion was denied.
Cabral contends that the trial court erred in denying his motion because the complaint fails to state a cause of action. Budget Rent-A-Car asserts that appellant’s motion for relief from default judgment did not raise this issue and, therefore, this court may not consider this point on appeal.
Generally, only questions that were before the trial court may be reviewed on appeal. See Mariani v. Schleman, 94 So. 2d 829, 831 (Fla.1957). However, despite the fact that a default judgment has been entered, the defendant is permitted “to contest the sufficiency of the complaint and its allegations to support the judgment.” Bay Prods. Corp. v. Winters, 341 So. 2d 240, 242 (Fla. 3d DCA 1976) (quoting Nishimatsu Constr. Co. Ltd. v. Houston Nat’l Bank, 515 F. 2d 1200 (5th Cir.1975)). In reviewing Budget Rent-A-Car’s complaint, we find that it wholly fails to state a cause of action against Cabral.
In addition, Cabral contends that the trial court erred in denying the motion for relief from judgment where there was a clear showing of excusable neglect and a meritorious claim. Trial courts have sound discretion in granting motions for relief from judgment upon a showing of excusable neglect and a meritorious defense. See B/G Amusements, Inc. v. Mystery Fun House, 381 So. 2d 318 (Fla. 5th DCA 1980).
We find that the trial court abused its discretion. Failure to respond in a timely manner “should be considered excusable where it is due to confusion which reasonably exists as a result of the pendency of two or more cases involving the same parties or related subject matters.” Zwickel v. KLC, Inc., 464 So. 2d 1280, 1280 (Fla. 3d DCA 1985). As in Zwickel, Cabral’s failure to respond in a timely manner was due to confusion as a result of the pendency of a case with a related subject matter.
Thus, Cabral’s neglect was excusable. Cabral, in his affidavit, raises a meritorious defense in that he alleges that he was neither the driver of the car nor the person that leased the car. Lastly, Cabral asserts that the trial court erred in awarding Budget Rent-A-Car attorney’s fees pursuant to section 57.-105, Florida Statutes (1987)
.
We agree. For an award of attorney’s fees pursuant to section 57.105, Florida Statutes (1987), the trial court must find “that there was a complete absence of a justiciable issue of either law or fact raised by absence of a justiciable issue of either law or fact raised by the ... defense of the losing part; ...” § 57.105, Fla.Stat. (1987) (emphasis supplied); see Sachs v. Hoglund, 397 So. 2d 447 (Fla. 3d DCA 1981); see also Castaway Lounge of Bay County, Inc. v. Reid, 411 So. 2d 282 (Fla. 1st DCA 1982). In the present case, Cabral did not raise defenses which completely lacked any justiciable issues of law or fact; in fact, Cabral failed to raise any defenses at all.
Thus, we find that the trial court erred in awarding Budget Rent-A-Car attorney’s fees pursuant to section 57.105, Florida Statutes (1987).
Reversed.
. Section 57.105 provides:
Attorney’s fees. — The court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party; provided, however, that the losing party's attorney is not personally responsible if he has acted in good faith, based on the representation of his client.
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Hooters OF Am., Inc. v. Carolina Wings, Inc., 655 So. 2d 1231 (Fla. 1st DCA 1995)…demonstrated. Because the argument was not presented to the trial court, I would not reach the appellant’s contention that the judgment awards damages that were not pleaded. However, I would certify conflict with Cabral v. Diversified Servs., Inc., 560 So. 2d 246 (Fla. 3d DCA 1990), as to this issue. For the first time, the appellant now contends through new counsel that the trial court violated the appellant’s due process rights by awarding damages for alleged breaches which were not pleaded by the ap-pell…
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Barnett v. Barnett, 718 So. 2d 302 (Fla. 2d DCA 1998)…has been entered under rule 1.500 based on a party’s failure to plead, a court may set aside a subsequently-entered default judgment if the defaulted party proves excusable neglect. See Fla. R. Civ. P. 1.540(b); Cabral v. Diversified Services, Inc., 560 So. 2d 246 (Fla. 3d DCA 1990).’ Here, however, the default was not entered because Mr. Barnett failed to file the necessary pleadings; it was entered as a sanction for his violation of a court order. Cf. Fla. R. Civ. P. 1.420(b). That drastic sanction could be…
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State v. Franklyn A. Salter, 710 So. 2d 1039 (Fla. 2d DCA 1998)…e resolved by default normally does not tax the time of the court or the opposing party in any manner. As a matter of law, section 57.105 fees may not be awarded against a defaulting party in civil litigation. See Cabral v. Diversified Servs., Inc., 560 So. 2d 246 (Fla. 3d DCA 1990); Fritillary Holdings, Inc. v. Pat & Mae’s Danceland Club, Inc., 443 So. 2d 506 (Fla. 4th DCA 1984); Sachs v. Hoglund, 397 So. 2d 447 (Fla. 3d DCA 1981). There may be an exception to this rule when the defaulting party’s absence im…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200 (5th Cir. 1975)
- Mariani v. Schleman, 94 So. 2d 829 (Fla. 1957)
- B/G Amusements, Inc. v. Mystery FUN House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980)
- BAY Prods. Corp. v. Winters, 341 So. 2d 240 (Fla. 3d DCA 1976)
- Sachs v. Hoglund, 397 So. 2d 447 (Fla. 3d DCA 1981)
- The Castaway Lounge OF BAY Cnty., Inc. v. Reid, 411 So. 2d 282 (Fla. 1st DCA 1982)
- Zwickel v. KLC, Inc., 464 So. 2d 1280 (Fla. 3d DCA 1985)