JOHN CLAFFEY AND JO ANN CLAFFEY, HUSBAND AND WIFE, APPELLANTS,
v.
ANDREW P. SERAFINO, APPELLEE
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The court held that a party seeking to set aside a default judgment must demonstrate both a legal excuse for non-compliance and a meritorious defense.
[1] A party seeking to set aside a default judgment must demonstrate both a legal excuse for failing to comply with court rules and a meritorious defense.
[2] A misunderstanding of legal obligations attendant to service of process, without more, is generally insufficient to establish excusable neglect under Rule 1.540(b).
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Join FLexlaw to unlock all legal intelligenceAppellants sued for ejectment, obtained a default and final judgment against appellee. Appellee moved to vacate the judgment, claiming excusable negle…
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BOARDMAN, Acting Chief Judge.
Appellants on January 20, 1976 filed suit for ejectment against appellee. Appellee failed to answer the complaint, and a default was entered March 16, clearly more than twenty days after service of the summons and copy of the complaint. The final judgment was rendered the next day. On March 26 appellee moved for a rehearing and for relief from the final judgment. This is an appeal from the trial court’s order of April 7 vacating the final judgment and default.
The Florida courts have liberally applied Fla.R.Civ.P. 1.540(b) to set aside defaults to permit trial on the suits. See Freedman v. Geiger, 314 So. 2d 189 (Fla. 3d DCA 1975). Nonetheless the burden is on the movant to establish both a legal excuse for failure to comply with the rules and a meritorious defense. E. g. Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So. 2d 733 (Fla. 1st DCA 1964). The affidavit submitted by appellee to the trial court in support of his motion states that he did not understand his legal obligations attendant to service of process and receipt of the complaint. He submits that his misimpression that he would receive further notice of the proceedings was legal cause for his failure to answer the complaint. Prior to the institution of this action appellee was advised by his usual attorneys that they could not represent him in a dispute between him and appellants. He did not contact other counsel until several days after the entry of the final judgment. We believe that appel-lee’s failure to take action in these circumstances is not sufficient to meet the required showing of “mistake, inadvertence, surprise or excusable neglect” as provided in Fla.R.Civ.P. 1.540(b).
Furthermore the record does not reflect that appellee has a meritorious defense to the suit for ejectment. The mere concluso-ry statement in his motion to that effect is insufficient.
Accordingly we reverse and remand to the trial court with directions to vacate the order of April 7, 1976.
GRIMES and SCHEB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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John Crescent, Inc. v. Schwartz, 382 So. 2d 383 (Fla. 4th DCA 1980)…t he does not comprehend the legal obligations attendant to service of process does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect [*386] to warrant the vacating of a final judgment. See, Claffey v. Serafino, 338 So. 2d 270 (Fla. 2nd DCA 1976). In the present case, it was precisely the failure of the appellee-wife to comprehend and act upon the service of process made upon her that resulted in the judicial sale. As in Lau, supra, this relates more to the sufficiency of…
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Westinghouse Elevator Co. v. DFS Constr. Co. & Fed. Ins. Co., 438 So. 2d 125 (Fla. 2d DCA 1983)…movant’s burden to establish both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense. Abray Construction Co. v. Star Swimming Pools, Inc., 426 So. 2d 1046 (Fla. 2d DCA 1983); Claffey v. Serafino, 338 So. 2d 270 (Fla. 2d DCA 1976). Additionally, the mov-ant must demonstrate due diligence in seeking relief from the default. Lacore v. Giralda Bake Shop, Inc., 407 So. 2d 275 (Fla. 3d DCA 1981). It is not necessary for us to determine if the court properly fou…
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Szucs v. Qualico Dev., Inc., 893 So. 2d 708 (Fla. 2d DCA 2005)…lt. See Gol-dome v. Davis, 567 So. 2d 909 (Fla. 2d DCA 1990) (holding defendant’s misunderstanding that plaintiffs were seeking money judgment until after bank sought writ of garnishment was not legal excuse to vacate judgment); Clajfey v. Serafino, 338 So. 2d 270 (Fla. 2d DCA 1976) (holding that misunderstanding of the significance of service of process is not excusable neglect warranting a vacating of a default). Because Szucs failed to demonstrate excusable neglect, we need not decide whether he establish…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Inv. Enters., Inc. v. The Ky. Co., Inc., 160 So. 2d 733 (Fla. 1st DCA 1964)
- Freedman v. Geiger, 314 So. 2d 189 (Fla. 3d DCA 1975)