Default Affirmed: Gross Neglect Cannot Constitute Excusable Neglect

In addition to the Fourth DCA's opinion today which is discussed here, the Third DCA issued an opinion reviewing a default order. In Brivis Enterprises, Inc. v. Teresita Von Plinski (3D08-1299) the Third DCA held that the defendant had not satisfied its burden to vacate the default and stated:

Under the circumstances of this case, we conclude that the trial court did not abuse its discretion by denying the defendants’ motion to set aside default where the trial court specifically found that Farrell’s testimony was "unworthy of belief," and the record supports this finding. Moreover, at best, the record, including Farrell’s testimony, indicates that the defendants were guilty of gross neglect, not excusable neglect, and therefore, the trial court did not abuse its discretion by denying the motion to set aside default. See Otero v. Gov’t Employees Ins. Co., 606 So. 2d 443, 444 (Fla. 2d DCA 1992) (holding that in allowing default to occur, "gross neglect cannot constitute excusable neglect"). Accordingly, we affirm the order under review.