TECHVEND, INC., APPELLANT,
v.
THE PHOENIX NETWORK, INC. A FLORIDA CORPORATION AND MADLEE ENTERPRISES, INC., A FLORIDA CORPORATION, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
TechVend appealed a default judgment, arguing it should be set aside. The Third District Court of Appeal affirmed the default, holding that TechVend's three-month delay in moving to vacate—plus an additional two months before filing supporting affidavits—constituted a lack of due diligence required to set aside defaults.
TechVend failed to demonstrate the due diligence required to set aside the default. The delay of more than three months before moving to vacate, and an additional two months before filing supporting affidavits, was excessive and failed to meet the due diligence standard.
[1] A significant delay in moving to set aside a default judgment after becoming aware of it constitutes a lack of due diligence required to justify vacating the default.
[2] Timely action to nullify a default judgment is required to promote the prompt disposition of legal proceedings.
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“it is uncontradicted that the defendant-appellant did not move to set aside the judgment until more than three months after it became aware of its existence and did not file supporting affidavits until two months after that. It is entirely clear that such a delay constituted a lack of the due diligence which is required to justify setting aside a default.”
Establishes the factual basis for finding lack of due diligence
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA default judgment was entered against defendant-appellant TechVend. Although there was an indication the default may have been initially erroneous, T…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Default Judgment cases and more on FLexlaw
SCHWARTZ, Chief Judge.
This appeal is from a judgment entered on' a default. While there is an indication that the default was initially erroneously entered, it is uncontradicted that the defendant-appellant did not move to set aside the judgment until more than three months after it became aware of its existence and did not file supporting affidavits until two months after that. It is entirely clear that such a delay constituted a la'ck of the due diligence which is required to justify setting aside a default. Fischer v. Barnett Bank of South Florida, N.A., 511 So. 2d 1087 (Fla. 3d DCA 1987) (five weeks); Bayview Tower Condominium Ass’n, Inc. v. Schweizer, 475 So. 2d 982, 983 (Fla. 3d DCA 1985) (one month); see also Garvin v. South Carolina Ins. Co., 528 So. 2d 929 (Fla. 2d DCA 1988) (six months).
While the theoretical underpinning of the due diligence requirement has perhaps not so far been fully explicated, it would appear that the requirement that one move expeditiously to nullify a default is directly related to the reasons for the entry of the default in the first place — to provide for the prompt disposition of legal proceedings. See B.C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345, 1348 (Fla. 3d DCA 1981). In essence, one might say, then, that timely action is required to avoid “defaulting” upon the opportunity to set aside a previously entered default. On this basis, the time provided initially to answer the complaint, twenty days, might well serve as a rule of thumb for the period in which a defendant must act to vacate a default after learning of its entry. See Fischer, 511 So. 2d at 1087; Bayview, 475 So. 2d at 982. In any case, the time involved in this case is far longer than either the standard we have tentatively advanced here, or the periods actually deemed excessive in the decided eases.
Affirmed.
LEVY, J., concurs.
COPE, Judge
(specially concurring).
While I concur in the first paragraph of the opinion, I am unable to subscribe to the twenty-day rule of thumb suggested in the second paragraph. As indicated in B.C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345, 1348 (Fla. 3d DCA 1981), “[t]he facts of each case are of singular importance in determining whether or not relief should be granted.” (citations omitted). There is a “long standing policy of liberality toward the vacating of defaults,” North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 852 (Fla.1962), and “ ‘if there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.’ ...” Id. at 853 (citations omitted). The question of what constitutes due diligence in moving to vacate the default must, in my view, be determined on the facts of each case in light of the principles just stated.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Morton L. Ginsberg & MLG Props., Inc. v. Lennar Fla. Holdings, 645 So. 2d 490 (Fla. 3d DCA 1994)…ee and compare Fla.R.Civ.P. 1.540(b); Otero v. G.I.E. Ins. Co., 606 So. 2d 443 (Fla. 2d DCA 1992), review denied, 614 So. 2d 502 (Fla.1993); World’s Finest Inc. v. Carpenter, 564 So. 2d 626 (Fla. 4th DCA 1990); Techvend Inc. v. Phoenix Network Inc., 564 So. 2d 1145 (Fla. 3d DCA 1990); Fischer v. Barnett Banks, 511 So. 2d 1087 (Fla. 3d DCA 1987); Bayview Tower Condominium v. Schweizer, 475 So. 2d 982 (Fla. 3d DCA 1985); Lacore v. Giralda Bake Shop, 407 So. 2d 275 (Fla. 3d DCA 1981); B.C. Builders Supply Co. v.…
-
Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA 1990)…se is remanded with directions to set aside the default.2 . This analysis would remain true even if a different guidepost were used to measure presumptive promptness in moving to set aside a default. See Techvend, Inc. v. The Phoenix Network, Inc., 564 So. 2d 1145 (Fla. 3d DCA 1990) (suggesting guideline; result would be same under previously decided cases). . Although not a basis for our decision, we note that the recently announced decision in Ole, Inc. v. Yariv, 566 So. 2d 812, (Fla. 3d DCA 1990) would al…
-
Lazcar Int'l, Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007)…place — to provide for prompt disposition of legal proceedings. In essence, one might say, then, that timely action is required to avoid “defaulting” upon the opportunity to set aside a previously entered default. Techvend v. Phoenix Network, Inc., 564 So. 2d 1145, 1146 (Fla. 3d DCA 1990) (internal citations omitted). It is also well settled in this state that evidence advanced to support the due diligence prong of a motion to vacate a default must be sworn. Church of Christ Written in Heaven v. Church of Chr…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)
- Bayview Tower Condo. Ass'n, Inc. v. Schweizer, 475 So. 2d 982 (Fla. 3d DCA 1985)
- Hubert Fischer & Angeles de Fischer v. Barnett Bank OF S. Fla., N.A., 511 So. 2d 1087 (Fla. 3d DCA 1987)
- Turner v. Turner, 528 So. 2d 929 (Fla. 4th DCA 1988)
- Garvin v. S.C. Ins. Co., 528 So. 2d 929 (Fla. 2d DCA 1988)