JEROME SCHWARTZ, APPELLANT,
v.
BUSINESS CARDS TOMORROW, INC., A DELAWARE CORPORATION, APPELLEE

Fla. 4th DCA | 1994-11-09
No. 93-2661
STONE and STEVENSON, JJ., concur.
644 So. 2d 611 Florida District Court of Appeal, Fourth District (1994) Positive Treatment
Cited by 20 cases

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Holding

The court held that a defendant must satisfy all three prongs of excusable neglect, meritorious defense, and due diligence to set aside a default.

Facts & Procedural History

Appellant failed to respond to a lawsuit, leading to a default and default final judgment. Appellant filed motions to vacate these after significant d…

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Topics
Setting Aside Default Judgment Florida Rule Of Civil Procedure 1.540(B) Meritorious Defense Due Diligence

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Opinion of the Court
POLEN, Judge.

POLEN, Judge.

Jerome Schwartz appeals the trial court’s order denying his motions to vacate the default entered on February 9, 1993, and the default final judgment entered on June 18, 1993. Appellant’s motions were not filed until July 30, 1993.

Pursuant to Florida Rule of Civil Procedure 1.540(b), in setting aside a default, the trial court must determine inter alia (1) whether the defendant has demonstrated excusable neglect in failing to respond; (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, has demonstrated due diligence in seeking relief. Schneiderman v. Cantor, 546 So. 2d 51 (Fla. 4th DCA 1989). The failure of the defendant to satisfy any one of these elements must result in a denial of the motion to set aside the default. In this case, appellant has failed to establish any of the necessary elements. Indeed, the record re- , fleets extraordinary efforts by appellee to notify appellant that the lawsuit was going forward, and to attempt to induce some response to the litigation by appellant or his counsel. We affirm the trial court’s denial of the motion as it pertains to.the February 9, 1993 clerk’s default.

Appellee has conceded that it was premature to enter the default final judgment. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

STONE and STEVENSON, JJ., concur.

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Citator

Cited By (11 total)

  • Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304 (Fla. 4th DCA 2010)
    …meritorious defense; and (3) whether the defendant, subsequent to learning of the default, had demonstrated due diligence in seeking relief.” Halpern v. Houser, 949 So. 2d 1155, 1157 (Fla. 4th DCA 2007) (citing Schwartz v. Bus. Cards Tomorrow, Inc., 644 So. 2d 611, 611 (Fla. 4th DCA 1994)). Because the Elliotts demonstrated these elements, the court abused its discretion in denying their motion to vacate the default. Excusable neglect is found “where inaction results from clerical or secretarial error, reaso…
  • Jennifer Denise Halpern, M.D. v. Houser, 949 So. 2d 1155 (Fla. 4th DCA 2007)
    …failing to respond, (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, has demonstrated due diligence in seeking relief. Schwartz v. Business Cards Tomorrow, Inc., 644 So. 2d 611, 611 (Fla. 4th DCA 1994). This Court stated that the failure to satisfy any one of these elements must result in a denial of the motion to set aside the default. Id. Furthermore, “Excusable neglect must be proven by sworn statements or affidavits.…
  • Galo Enrique Andrade v. Andrade, 720 So. 2d 551 (Fla. 4th DCA 1998)
    …inal judgment pursuant to rule 1.540(b), Florida Rules of Civil Procedure, a party seeking relief must demonstrate excusable neglect, a meritorious defense, and that the party acted with due diligence. E.g. Schwartz v. Business Cards Tomorrow, Inc., 644 So. 2d 611 (Fla. 4th DCA 1994). Here, Appellee’s defense is that she is mentally ill and could not be divorced. Although Appellant claims that no excusable neglect was demonstrated, the “excusable neglect” basis for setting aside the judgment is certainly sati…

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