KARINA BARG
v.
CASABLANCA ON THE BAY, INC.
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Karina Barg appealed a trial court's order setting aside a final default judgment against Casablanca on the Bay, Inc. The court found that the defendant established excusable neglect for failing to respond to service of process, and the appellate court affirmed this determination as a non-abusive exercise of discretion.
The trial court did not abuse its discretion in finding excusable neglect. The court's determination was based on credibility findings regarding the employee's testimony about his medical condition and medication at the time of service, which constituted a valid exercise of discretion rather than an abuse thereof.
[1] A trial court's determination that a party has established excusable neglect for setting aside a default judgment is reviewed for abuse of discretion and upheld when base…
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Join FLexlaw to unlock all legal intelligenceCasablanca on the Bay, Inc. was served with process, but the employee who received service testified at an evidentiary hearing that he did not recall …
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Opinion filed January 26, 2022. Not final until disposition of timely filed motion for rehearing.
________________ No. 3D21-1506 Lower Tribunal No. 20-20736 ________________
Karina Barg,
Appellant,
vs.
Casablanca on the Bay, Inc., Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Migna Sanchez-Llorens, Judge. The Legal Team, PLLC, and Karel Suarez, Sanchez, Fischer Levine, LLP, and David M. Levine, and Fausto Sanchez and Paola Sanchez Torres, for appellant. Dorta & Ortega, P.A., and Rey Dorta, and Ashley Suarez, for appellee. Before LINDSEY, HENDON, and MILLER, JJ. PER CURIAM.
Karina L. Barg (plaintiff below) appeals the trial court’s order setting aside a final default judgment entered against Casablanca on the Bay, Inc. (defendant below). At the evidentiary hearing, the Casablanca employee served with process testified that he did not ever recall being served with process because he had just returned to work following a three-month long hospitalization and had been prescribed heavy medication, including oxycodone. The trial court’s conclusion that this established excusable neglect was not an abuse of discretion, simply a credibility determination. See Cruz v. Caribbean Spring Vill., 944 So. 2d 1161, 1162 (Fla. 3d DCA 2006); cf. Benefit Admin. Sys., LLC v. W. Kendall Baptist Hosp., Inc., 274 So. 3d 480, 483 (Fla. 3d DCA 2019) (“The trial court weighed the evidence, made credibility determinations, and concluded that [movant] failed to show it was never served with the summons and complaint. . . . The trial court did not abuse its discretion in finding that [movant] failed to establish excusable neglect.”). Because the trial court did not abuse its discretion, we affirm.
Affirmed.
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Citator
Authorities Cited
- Rinaldo Cruz v. Caribbean Spring Vill., 944 So. 2d 1161 (Fla. 3d DCA 2006)
- Benefit Admin. Sys., LLC v. W. Kendall Baptist Hosp., Inc., 274 So. 3d 480 (Fla. 3d DCA 2019)