NET ONE, LLC, APPELLANT,
v.
CHRISTIAN TELECOM NETWORK, LLC, APPELLEE

Fla. 5th DCA | 2005-05-20
No. 5D04-2910
PLEUS and TORPY, JJ., concur.
901 So. 2d 417 Florida District Court of Appeal, Fifth District (2005) Positive Treatment
Cited by 3 cases

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.

Synopsis

Net One appealed an order vacating a default judgment against Christian Telecom Network for non-payment of invoices under a Switchless Reseller Agreement. The Fifth District Court of Appeal reversed and remanded, finding that while Christian established excusable neglect and due diligence, it failed initially to adequately plead specific meritorious defenses before the trial court vacated the default.


Holding

Christian established excusable neglect and due diligence but failed to establish meritorious defenses through proper pleading or affidavit prior to the hearing. The appeal was premature because the trial court's order merely granted the motion to vacate and allowed Christian to file additional pleadings without actually setting aside the default judgment. The court remanded for the trial court to consider Christian's additional pleadings and render a final order stating its reasons for vacating or not vacating the default.


Headnotes

[1] A party seeking to set aside a default judgment must establish excusable neglect, due diligence, and a specific meritorious defense.

[2] A defendant seeking to vacate a default judgment must disclose meritorious defenses in a defensive pleading or an affidavit, rather than making conclusory assertions.

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Key Quotes

“A defendant who seeks to vacate a default judgment may not make conclusory assertions that it has a meritorious defense, but must disclose those defenses in a defensive pleading or an affidavit.”

Establishes the requirement that meritorious defenses must be specifically pleaded or supported by affidavit, not merely asserted verbally at a hearing.

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Facts & Procedural History

Net One and Christian executed a Switchless Reseller Agreement whereby Net One provided telecommunication services as a reseller. When Christian faile…

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Opinion of the Court
SHARP, W„ J.

SHARP, W„ J.

Net One, LLC appeals from an order which granted Christian Telecom Network, LLC’s motion to vacate a default judgment. We remand to the trial court for further action consistent with this opinion.

Net One and Christian executed a Switchless Reseller Agreement, in which Net One agreed to engage-Christian as a reseller for its telecommunication services. Pursuant to the Agreement, Net One had the right, in its sole discretion, to terminate any and all. services provided to Christian and its customers. The Agreement also required that Christian make payment on invoices submitted by Net One within a certain time period. When Christian failed to pay these invoices, Net One brought suit.

A month after service of the lawsuit, Net One obtained a default judgment against Christian, and Christian moved to vacate it. Christian admitted that it had been served with process through its agent, Corporation Service Company (CSC), but claimed that due to an error in CSC’s records, the summons and complaint were forwarded to the wrong address, and Christian did not receive notice of the pending lawsuit. This claim was supported by an affidavit of Paul Matthews, a CSC employee.1 The motion also alleged, in general, that Christian had meritorious defenses to Net One’s claims and “significant counterclaims” against Net One which could include damages in excess of $100,000.

At the hearing on the motion, Net One’s attorney said he did not oppose Christian’s claim of due diligence and excusable neglect. He opposed the motion on the ground that Christian failed to adequately establish it had • meritorious defenses. Prior to the hearing, no specific defenses had been set out in any pleading, proposed pleading, by affidavit, or in the motion itself, as required by Florida case law. In order to set aside a default judgment, a party must show excusable neglect, due diligence, and a specific meritorious defense.

At the hearing, Christian’s attorney described to the court various meritorious defenses: Christian had not paid its bills because it did not receive the services promised by Net One; and Net One had dropped some of its 800 numbers, which had cost Christian over $100,000 in damages. The trial court determined, at that hearing, that it was going to vacate the default and ordered Christian’s counsel to prepare the order. An order was rendered by the court, but it merely granted Christian’s motion and allowed Christian to file additional pleadings. Thereafter, Christian filed an answer, affirmative defenses and counterclaim. It also filed a supplemental motion to vacate the order setting aside default final judgment, because the order failed to include any language actually vacating the judgment.

This motion was heard on September 28, 2004. Christian presented an affidavit from Carl Zimmerman, its managing member, which attested to the facts and allegations in the answer as true. Net One responded that its appeal had been filed, and argued that the trial court no longer had jurisdiction to enter an order on the supplemental motion.

A party seeking to set aside a default must establish three things under Rule 1.540:(1) excusable neglect; (2) a meritorious defense; and (3) due diligence. See Geer v. Jacobsen, 880 So. 2d 717 (Fla. 2d DCA 2004); Allstate Ins. Co. v. Ladner, 740 So. 2d 42 (Fla. 1st DCA 1999); Schwartz v. Business Cards Tomorrow, Inc., 644 So. 2d 611 (Fla. 4th DCA 1994). A defendant who seeks to vacate a default judgment may not make conclusory assertions that it has a meritorious defense, but must disclose those defenses in a defensive pleading or an affidavit. See Geer; Merrill Lynch Mortgage Capital, Inc. v. Hallmark Industries, Inc., 627 So. 2d 12 (Fla. 2d DCA 1993).

However, any reasonable doubt with regard to setting aside a default judgment should be resolved in favor of vacating the default and allowing trial on the merits. Allstate. There is a strong preference for lawsuits to be determined on their merits, and courts should liberally set aside defaults under appropriate circumstances. Geer. The district court’s review of a trial court’s order vacating a default is for gross abuse of discretion. Geer. A higher standard is applied where the default is vacated than where the court denies the motion to vacate. Geer. Christian established excusable neglect and due diligence, but it failed to establish meritorious defenses. The order granting Christian’s motion to vacate the default judgment gave Christian ten days to file its responsive pleadings, although it failed to set aside the default judgment.

We conclude this appeal was premature. We dismiss the appeal and remand to the trial court for further proceedings. The trial court, in its discretion, may consider Christian’s additional pleadings as permitted amendments, set an additional hearing on the motion to set aside the default judgment and render a final order. We therefore remand to the trial court so that it may enter a final order, stating its reasons for vacating or not vacating the default judgment.

DISMISSED and REMANDED for further proceedings.

PLEUS and TORPY, JJ., concur. . When Christian registered to conduct business in various states, it utilized the services of Turn 4 Communications, Inc. to ensure that Christian’s operations were in compliance with state and federal communications regulations. When Christian received documentation from the Florida Secretary of State’s Office with respect to its registration to do business in Florida, it inadvertently recorded the contact name and address for Christian as Turn 4 Communications, Inc.


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Citator

Cited By

  • Cedar Mountain Ests., LLC v. Loan ONE, LLC, 4 So. 3d 15 (Fla. 5th DCA 2009)
    …(Fla.1962)). Still, to prevail on a motion to vacate a default judgment, the moving party must establish: (1) excusable neglect; (2) a meritorious defense; and (3) due diligence. Fla. R. Civ. P. 1.540; Net One, LLC v. Christian Telecom Network, LLC, 901 So. 2d 417, 419 (Fla. 5th DCA 2005). Here, Post established a meritorious defense by filing a responsive pleading alleging multiple affirmative defenses, a copy of which he attached to his motion. See, e.g., Geer v. Jacobsen, 880 So. 2d 717, 721 (Fla. 2d DCA…
  • Dep't OF Child. & Families v. W.J.R., 915 So. 2d 245 (Fla. 5th DCA 2005)
    …nner in the disposition of W.J.R., contrary to section 985.223(l)(a), Florida Statutes.1 We ordered respondent to show cause why this petition should not be granted, but no response has been filed. In Department of Children and Families v. J.F.C., 901 So. 2d 417 (Fla. 5th DCA 2005), this court quashed a juvenile commitment order in a similar case, because it had been entered without prior notice to DCF. We held that notice to DCF and permitting DCF to participate in a meaningful way in a competency proceedi…
  • Bogdanoff v. Broken Sound Club, Inc (15th Cir. Ct. App. Div. 2008)

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