ANTHONY J. DISARRIO, INDIVIDUALLY AND D/B/A GREAT LIFE BUILDERS, APPELLANT,
v.
RICHARD MILLS AND GLENDA MILLS, APPELLEES
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Disarrio challenges the trial court's finding that the Mills' attorney's failure to appear at a pretrial conference constituted excusable neglect under Florida law. The court reverses, holding that excusable neglect cannot be proven through unsworn statements and must be supported by sworn affidavits or verified testimony.
The court reversed, holding that excusable neglect cannot be established through unsworn assertions or counsel's unverified testimony. Excusable neglect requires sworn statements or affidavits, and the trial court abused its discretion in accepting unsworn testimony about a scheduling error as sufficient proof.
[1] Excusable neglect requires a showing of both a legal excuse for failing to comply with the rules of civil procedure and a meritorious defense.
[2] Allegations of excusable neglect must be proven by sworn statements or affidavits.
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Join FLexlaw to unlock all legal intelligence“Excusable neglect requires a showing of both a legal excuse for failing to comply with the Florida Rules of Civil Procedure and a meritorious defense.”
Establishes the two-part test for excusable neglect
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Join FLexlaw to unlock all legal intelligenceThe Mills filed suit against Disarrio and Great Life Builders in June 1996 for breach of a construction contract. After the Mills failed to comply wit…
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QUINCE, Judge.
Anthony J. Disarrio challenges the trial court’s determination that the failure of Richard and Glenda Mills’ (the Mills) attorney to appear at a scheduled pretrial conference was excusable neglect under Florida Rule of Civil Procedure 1.540(b). We reverse because excusable neglect is not supported by evidence.
The Mills filed suit in June 1996 against Disarrio and Great Life Builders for breach of a construction contract. After the Mills failed to comply with various pretrial orders, Disarrio filed a motion for sanctions on June 16, 1997. At the scheduled pretrial conference the trial court noted the absence of counsel for the Mills and noted the Mills’ failure to comply with other pretrial orders. Based on these facts the court granted sanctions by striking the Mills’ pleadings and dismissing the ease with prejudice. The Mills filed a motion to set aside the order pursuant to Florida Rule of Civil Procedure 1.540(b) based on excusable neglect.
Excusable neglect requires a showing of both a legal excuse for failing to comply with the Florida Rules of Civil Procedure and a meritorious defense. See Schauer v. Coleman, 639 So. 2d 637 (Fla. 2d DCA 1994); Collins v. Collins, 519 So. 2d 729 (Fla. 2d DCA 1988). The brief motion filed with the trial court offered no explanation for counsel’s failure to appear aside from conclu-sory allegations of mistake and excusable neglect. At the hearing, counsel blamed his failure to appear at the pretrial conference on a scheduling error. The trial court accepted this unsworn and unverified explanation, expressly finding that “plaintiffs are not required to file a verified motion or affida-vit_” This conclusion is error. Excusable neglect must be proven by sworn statements or affidavits. See Schauer, 639 So. 2d at 638-39. Unsworn assertions of excusable neglect are insufficient. Id. at 639. The Mills, having correctly sought relief under rule 1.540, must comply with its mandates. Counsel for the Mills neither offered a verified motion nor testified under oath. Allegations of excusable neglect require more than mere legal conclusions. See Blimpie Capital Venture v. Palms Plaza Partners, 636 So. 2d 838 (Fla. 2d DCA 1994). Argument by counsel who is not under oath is not evidence. See Murphy v. State, 667 So. 2d 375 (Fla. 1st DCA 1995); State v. T.A., 528 So. 2d 974 (Fla. 2d DCA 1988). Thus, the failure to verify the claim of excuse is fatal. See Blimpie Capital Venture, 636 So. 2d at 841.
The Mills argue that Disarrio waived any right to object to counsel testifying while not under oath. While it is true that challenges to unverified or unsworn testimony must be made contemporaneously at trial, Murphy, 667 So. 2d at 376, the record reflects that appellant lodged an objection in this case. Given the unverified nature of the motion and the hearing testimony, the trial court abused its discretion in finding the Mills’ actions to be excusable neglect.
We reverse the trial court’s order finding excusable neglect and reinstate the order dismissing the Mills’ claim.
FRANK, A.C.J., and DOYEL, ROBERT L., Associate Judge, concur.
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Geer v. David Neal Jacobsen, Brian James Almengual, & Almengual & Warner, P.A., 880 So. 2d 717 (Fla. 2d DCA 2004)…he default judgment because Almengual failed to establish excusable neglect or a meritorious defense. “Excusable neglect must be proven by sworn statements or affidavits. Unsworn assertions of excusable neglect are insufficient.” DiSarrio v. Mills, 711 So. 2d 1355, 1356 (Fla. 2d DCA 1998) (citations omitted); see also Collins v. Collins, 519 So. 2d 729, 730 (Fla. 2d DCA 1988). Almengual’s unsworn motion to set aside or vacate default stated that Almengual intended to defend the lawsuit, and “[n]o neglect was…
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Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304 (Fla. 4th DCA 2010)…the defendant believed it need not file an answer to the plaintiffs complaint. Id. at 24. “ ‘Excusable neglect must be proven by sworn statements or affidavits.’ ” Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 2d DCA 2004) (quoting DiSarrio v. Mills, 711 So. 2d 1355, 1356 (Fla. 2d DCA 1998)). Here, the Elliotts filed a verified motion containing properly sworn statements, as follows: 2. Defendants were served with summons and complaint on or about March 11, 2008. 3. On or about March 11, 2008 I, Lisa Elliott,…
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Daughtrey v. Daughtrey, 944 So. 2d 1145 (Fla. 2d DCA 2006)…had already executed was the result of “a scrivener’s error.” As this court has previously observed, unsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation. See DiSarrio v. Mills, 711 So. 2d 1355, 1357 (Fla. 2d DCA 1998); State v. T.A., 528 So. 2d 974, 975 (Fla. 2d DCA 1988). Here, the Husband’s attorney made a timely objection to the entry of an amended final judgment based on the un-sworn statements made by the Wife’s counsel. Although the…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blimpie Cap. Venture, Inc. v. Palms Plaza P'rs, Ltd., 636 So. 2d 838 (Fla. 2d DCA 1994)
- State v. T.A., 528 So. 2d 974 (Fla. 2d DCA 1988)
- Collins v. Collins, 519 So. 2d 729 (Fla. 2d DCA 1988)
- Schauer v. Coleman, 639 So. 2d 637 (Fla. 2d DCA 1994)
- Murphy v. State, 667 So. 2d 375 (Fla. 1st DCA 1995)