final until disposition of timely filed motion for rehearing.
Nonfinal appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Mily R. Powell, Judge; L.T.
Case No. CACE18-009093 (03).
Elizabeth Olivia Hueber and Michael L. Feinstein of Michael
L. Feinstein, P.A., Fort Lauderdale, for appellant.
M. Swickle of Steven M. Swickle, P.A., Fort Lauderdale, for
Fernandez, Jr. ("Defendant") appeals from the trial
court's denial of his second motion to vacate the default
judgment in favor of Roseann Difiore ("Plaintiff").
The trial court denied the second motion for failure to
exercise due diligence. Defendant argues the court erred
because due diligence applied only to the initial motion to
vacate, not the subsequent motion. We agree and reverse.
sued Defendant for an unpaid promissory note. Other suits
were pending between Plaintiff's husband and Defendant.
In this suit, Defendant failed to serve or file any
responsive papers, and final default judgment was entered. A
week later, Defendant filed an answer, affirmative defenses
and counterclaim. Defendant also moved to vacate the default
judgment, alleging excusable neglect, due diligence and a
meritorious defense. Attached was an affidavit from defense
counsel, asserting that he failed to timely answer because
his legal assistant (1) "was confused due to the
multiple current actions between" the parties and made a
scheduling mistake, and (2) "was out sick and in the
hospital with encephalitis." After a hearing, the trial
court denied the motion "without prejudice." The
following day, Defendant filed the affidavit of defense
counsel's legal assistant; this affidavit alleged the
same facts as defense counsel's affidavit.
days later, Defendant filed his second motion to vacate the
default judgment. No new grounds were alleged, and Plaintiff
filed no opposition. At the hearing on the second motion,
neither party presented testimony or evidence. Defense
counsel argued that correcting the affidavit "was the
critical issue stopping the default judgment from being set
aside," but the trial court stated that it "[did
not] remember that to be the case." Plaintiff argued
Defendant did not exercise due diligence in filing the second
motion more than two months later, so the motion should be
denied. Defense counsel replied that "we do not
recognize the default judgment case law to apply to diligence
upon filing an amended motion, only the original
motion." The trial court denied the second motion
"for failure to exercise due diligence." This
argues the trial court erred in denying the second motion to
vacate default because due diligence applies only to the
initial motion to vacate, not to subsequent motions.
Plaintiff responds that due diligence should apply to the
second motion, otherwise the denial of the initial motion
"acts as a stay or tolling which allows the moving party
to take no further action."
ruling on a motion to vacate is usually reviewed under the
abuse of discretion standard; however, when there is no
factual dispute and the trial court's ruling is made as a
matter of law, the standard of review is de novo. Fla.
Eurocars, Inc. v. Pecorak, 110 So.3d 513, 515 (Fla. 4th
DCA 2013) (citing Mourning v. Ballast Nedam Constr.
Inc., 964 So.2d 889, 892 (Fla. 4th DCA 2007)).
defendant's motion to vacate a default final judgment
must demonstrate the following: (1) the failure to file a
responsive pleading resulted from excusable neglect; (2) a
meritorious defense; and (3) the defendant acted with due
diligence in seeking relief from the default. Fla.
Eurocars, Inc., 110 So.3d at 515 (citation omitted).
Where, as here, a trial court denies a motion to vacate a
default judgment based on a failure to exercise due
diligence, "the only issue to be addressed on appeal is
whether the defendants demonstrated that they acted with due
diligence in seeking relief from the default judgment."
public policy favors the setting aside of defaults so that
controversies may be decided on the merits."
Lloyd's Underwriter's at London v. Ruby,
Inc., 801 So.2d 138, 139 (Fla. 4th DCA 2001) (citing
N. Shore Hosp., Inc. v. Barber, 143 So.2d 849,
852-53 (Fla. 1962)). "In implementing this policy,
'if there be any reasonable doubt in the matter [of
vacating a default], it should be resolved in favor of
granting the application and allowing a trial upon the
merits.'" Id. (quoting N. Shore
Hosp., 143 So.2d at 853). "This is particularly
true in cases in which the parties are not prejudiced by the
late filing." Tutwiler Cadillac, Inc. v.
Brockett, 551 So.2d 1270, 1272 (Fla. 1st DCA 1989).
Furthermore, "[W]here inaction results from clerical or
secretarial error, reasonable misunderstanding, a system gone
awry or any other of the foibles to which human nature is