It Is The Plaintiff's Burden To Prove The Validity Of Service Of Process

In Silva v. BAC Home Loans Servicing, L.P. (5D10-3511), the Fifth District reversed an order denying a motion to set aside a default judgment. In this case, the plaintiff served the defendant under section 48.031, Florida Statutes, by serving “Luz Rodriguez,” who was purportedly living at the property. After judgment was entered, the appellant/defendant sought to vacate the judgment and filed affidavits establishing they did not know Luz Rodriguez, that the property had been vacant for "some time" before the purported substituted service, and that they had lived in Miami for at least 18 months.

The Fifth District stated:

The party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process. See Torres v. Arnco Constr., Inc., 867 So. 2d 583, 587 (Fla. 5th DCA 2004). This record does not reflect competent evidence that BAC Home Loans Servicing L.P., the plaintiff below, met that burden. The default judgment was, therefore, void and must be set aside. See Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994).

For what it's worth, the appellee did not appear in this appeal.

Entry Of Default Is Not Discretionary

In TBOM Mortgage Holdings LLC v. Brown (3D11-229), the Third District agreed with the petitioner that the trial court erred by refusing to enter a default. The trial court had refused to enter the default based upon "what must be called the spurious reason that the non-military affidavit was in some unspecified (because non-existent) way 'insufficient'.”

In fact and in law, the affidavit, which was in the universally accepted form, and was supported by evidence which clearly established that the defendant, who was personally served at his home in Miami-Dade County, was not in the military service, was legally impeccable. Since it is established and we repeat that the trial court is not free to refuse to follow the law because of some personal disinclination or otherwise....and that it is, therefore,mandatorily required to enter the default sought in this case....it is ordered that it expeditiously do so.

Judge Salter dissented for two reasons. First, he believed this should have been treated as a petition for certiorari and not mandamus. Had it been treated as a petition for certiorari the petition would have been untimely. Second, Judge Salter stated that Florida Rule of Civil Procedure 1.500(b) uses "may" regarding the entry of default and not "must." The use of the word "may," according to Judge Salter, renders it a discretionary task and inappropriate for mandamus.

Motion To Vacate Default Must Be Heard Before Entry Of Final Default Judgment

In Goodman v. Joffe (4D10-4663), the Fourth District reversed the trial court's final default judgment.  The "trial court should have ruled on her pending motion to vacate the default entered against her before entering a default final judgment."  The court affirmed the trial court's ruling denying a motion to quash service of process.

Order Denying Motion To Vacate Judgment Reversed & Remanded For Evidentiary Hearing

In Palacio v. Alaska Seaboard Partners Limited Partnership, et al (1D10-2690), the First District reversed the trial court's order denying a motion to set aside judgment and remanded the case so that the trial court can conduct an evidentiary hearing.

Appellants were served with a foreclosure complaint in February 2009, to which they did not file a response due to what they understood to be assurances by the loan servicer representative.  Appellants alleged they contacted  the loan servicer representative  immediately after being served with the complaint.  Appellants  were assured  by the loan service representative  that the foreclosure proceeding would be abated pending application for, and approval of, a loan modification agreement.  Appellants alleged that they faxed the application for the loan modification agreement on April 7, 2009.  In support of this assertion, Appellants attached affidavits and the facsimile cover sheet  to their motion  to set aside and vacate a default judgment.

The court held that those facts were sufficient to require an evidentiary hearing.  The court stated:

It is the trial court’s failure to conduct an evidentiary hearing that warrants reversal of the denial of Appellants’ motion to set aside the default judgment.  This court has held that a trial court is required to conduct an evidentiary hearing before entering an order denying a motion to set aside a judgment.  See Seal v. Brown, 801 So. 2d 993, 994-95 (Fla. 1st DCA 2001).  Furthermore, if a moving party’s allegations raise a colorable entitlement to relief, a formal evidentiary hearing and appropriate discovery is required.  Id.  at 995.

As in the proceedings below, Appellees do not contest Appellants’ factual assertions; rather,  they  essentially  argue that Appellants’ allegations  are facially insufficient to warrant entitlement to setting aside a default judgment.  We disagree.  Appellants’ allegations and supporting documents make a colorable case for their assertion that their failure to respond to the foreclosure complaint was due to their settlement negotiations and complying with what they understood to be a modified mortgage agreement, all of which may reasonably have led them to believe that the foreclosure action was abated. 

Judge Thomas wrote the opinion and Judge Hawkes concurred.  Judge Davis concurred in the result only.

Default Only Constitutes Admission Of Well-Pleaded Factual Allegations

In Lincks v. Keenan (4D08-2807), the Fourth District affirmed the trial court's dismissal of a fifth amended complaint over a defednant that had previously defaulted:

Because the entry of a default constitutes an admission of only the well-pleaded factual allegations of the complaint, see Days Inns Acquisition Corp. v. Hutchinson, 707 So. 2d 747 (Fla. 4th DCA 1997), a complaint which fails to state a cause of action cannot form the basis of a judgment against the defendant. See GAC Corp. v. Beach, 308 So. 2d 550 (Fla. 2d DCA 1975).

Third District Affirms 2007 Order Denying Motion To Set Aside Default Entered In 1993

In Robert Whitney, D.C. d/b/a 127th Street Intracoastal Chiropractic Center v. A Aventura Chiropractic Care Center, Inc., and Pembroke Pines Chiropractic Care Center, Inc. (3D08-2546), the Third District affirmed a trial court's 2007 order denying a motion to set aside a default final judgment entered in 1993.  "The appellant argued below and here that he never received various pleadings and the default final judgment in 1992 and 1993...Moreover, the final judgment was recorded among the public records in 1993. The appellant has advanced no reason for simply ignoring, for so many years, a lawsuit he knew had been filed and served upon him in 1990. And although an amended complaint apparently1 was filed after appellant’s counsel withdrew, there was no obligation to serve it by process upon appellant if that pleading did not contain “new or additional claims.” 

The Court then gave a warning to pro se parties and stated:

The cautionary message to parties who have been sued and then elect to proceed without legal representation is this: keep a watchful eye on the case, whether by inspecting the court file or checking the on-line docket. The fact that a self-represented person does not receive further mailings regarding the case does not itself protect her or him from an adverse judgment, because certificates of service by counsel are presumptively valid. Ignoring a lawsuit after service of the original complaint (and absent dismissal with prejudice of all claims) is the legal equivalent of ignoring the dashboard signal for “no brakes” in a rapidly-moving automobile.

"Miscarriage Of Justice" Leads Fourth District To Quash Order Below

In Shell v. Foulkes (4D08-4148), the Fourth District quashed three orders of the circuit court sitting in its appellate capacity because "the Circuit Court departed from the essential requirements of law, failing to provide petitioner due process and apply the correct law; hence a miscarriage of justice."

The county court entered an order of default, however, not a final judgment.  Two separate notices of appeal were filed and two separate circuit court judges reviewed the default - one reversing and one affirming.  However, "the Circuit Court exceeded its appellate jurisdiction. An order merely entering a default without a consequent final judgment is not a final order."

The petitioner then filed for relief from the default under Rule 1.540(b).  The county court denied the motion based upon the mandate of the circuit court's order affirming the default and another appeal was filed in the circuit court.  The circuit court "dismissed the appeal on the grounds that the dismissal of a rule 1.540(b) motion was not appealable. This was a departure from the essential requirements of law because it is appealable as a final order."  The Fourth District summarized:

the Circuit Court lacked jurisdiction over the attempts to appeal the non-final order of the County Court entering the default. Consequently the Mandate of the Circuit Court affirming the default had no effect. Yet the Circuit Court did have final appeal jurisdiction as to the County Court’s dismissal of the motion under rule 1.540(b) because it was a final order on that subject. The only possible outcome for the later appeal to the Circuit Court was to reverse the dismissal and direct the County Court to consider the motion for relief on the merits.

Third District Issues Clarified Opinion Relating To Default Judgment

In Infante v. Vantage Plus Corp., et al (3D08-1960), the Third District granted a motion for clarification.  The original opinion, released on June 24, 2009, was discussed here.  As with the original opinion, the court held that "We reverse because Infante correctly asserted all of the causes of action in her complaint, and thus, the trial court improperly vacated the default final judgment on the grounds that the complaint was technically deficient."

The main additions/changes to the clarified opinion appears to be the following:

“A default admits every cause of action that is sufficiently well-pled to properly invoke the jurisdiction of the court and to give due process notice to the party against whom relief is sought.” Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662 (Fla. 5th DCA 1983). Furthermore, as we stated in Becerra v. Equity Imports, Inc., 551 So. 2d 486, 488 (Fla. 3d DCA 1989), a “judgment by default operates as a waiver of any mere formal errors in plaintiff’s pleading but does not cure a totally defective complaint or waive errors which go to the foundation of plaintiff’s cause of action.” (citing 49 C.J.S. Judgments § 200 at 356 (1947)).

***

In Moynet v. Courtois, 8 So. 3d 377, 380 (Fla. 3d DCA 2009), we stated that plaintiff’s “failure to allege criminal intent is fatal to their cause of action for civil theft. Moreover, there are no other facts alleged from which criminal intent may be implied.” While the words “criminal intent” did not appear on the complaint, it is quite detailed in setting forth how the defendants conspired to defraud Infante of her money. We have never required the incantation of magic words, nor voided default judgments on the basis of mere technical errors in pleading. See, e.g., Lazcar Int’l., Inc. v. Caraballo, 957 So. 2d 1191, 1193 (Fla. 3d DCA 2007)."

Plaintiff's Claim it Did Not Receive Notice of Hearing Requires Evidentiary Hearing

In Depelisi v. Wishner (4D08-2581), the Fourth District reversed a dismissal order because the trial judge failed to conduct an evidentiary hearing to determine if the plaintiff had received a notice of hearing on defendant's motion to dismiss.

There were apparently prior issues with notices of hearing, as the Fourth District noted, because the trial court had previously issued an order requiring communication before any hearing could be noticed.

The defendants filed motions to dismiss. Despite the order, one of the defendants filed a notice of hearing on the motion for May 7, 2008. The certificate of service indicated that the notice was sent by mail on April 29, 2008. Plaintiff’s counsel failed to appear at the hearing. Defense counsel advised the court that he had faxed and mailed the notice to plaintiff’s counsel, and had called and left messages on both the cell and office phones. The judge called plaintiff’s counsel on his cell and office numbers, heard counsel’s voice mail, and left a message instructing the lawyer to return the call. The judge then heard a motion for protective order, but declined to hear the motion to dismiss.

The next day, the same defendant filed a re-notice of hearing for May 22, 2008, certifying that notice was sent by mail to the same address for plaintiff’s counsel. Once again, neither the plaintiff nor his counsel appeared at the hearing. Defense counsel explained to the court the efforts taken to notice plaintiff’s counsel, which included mail, fax, and phone notice. Defense counsel also advised the court that he had difficulty reaching plaintiff’s counsel, but had received a message indicating that plaintiff’s counsel had moved and no longer had a fax machine. The trial court proceeded with the hearing. The court granted the motion to dismiss with prejudice, and added that the “[p]laintiff was duly noticed and for the second time failed to appear.

The plaintiff then filed a motion for rehearing, arguing they never received notice of the hearing on the motion to dismiss. "A successor judge heard the motion. That judge indicated that he was bound by the prior trial judge’s findings that the plaintiff’s counsel had been notified and could not rehear the issue." The Fourt District reversed, holding that the trial court was required to conduct an evidentiary hearing:

A presumption of notice arises when a certificate of service indicates that pleadings and orders were mailed to counsel. Camerota v. Kaufman, 666 So. 2d 1042, 1045 (Fla. 4th DCA 1996). That presumption is rebuttable. Id; W.T. Holding v. Agency for Health Care Admin., 682 So. 2d 1224, 1225–26 (Fla. 4th DCA 1996). “While a sworn affidavit stating that the filing was not received will not automatically overcome the presumption, such an affidavit will create an issue of fact which must be resolved by the trial court.” Camerota, 666 So. 2d at 1045. That resolution requires an evidentiary hearing. Torrey v. Torrey, 815 So. 2d 773, 775–76 (Fla. 4th DCA 2002).

Third DCA Reverses Order Vacating Default Judgment

In Infante v. Vantage Plus Corp., et al (3D08-1960), the Third District reversed the trial court's order vacating a final default judgment.

The trial court vacated the judgment because, in its opinion, the complaint failed to state a cause of action. The Third District reversed because "because Infante correctly asserted all of the causes of action in her complaint, and thus the trial court improperly vacated the default final judgment on the grounds that the complaint was technically deficient."

"The standard of review of an order that vacates a final judgment by default as void for a complaint’s failure to state a cause of action is de novo. See Rubenstein v. Primedica Healthcare, Inc., 755 So. 2d 746, 748 (Fla. 4th DCA 2000). As this Court stated in Cruz v. Domenech, 905 So. 2d 938, 940 (Fla. 3d DCA 2005), "[i]n determining whether [the trial court’s] jurisdiction to grant a particular form of relief has been properly invoked by the pleadings, the trial court must be guided by whether the pleadings provided the parties with sufficient notice that matters related to such relief would be at issue."

"[E]even if these counts were technically deficient, the theft counts placed the defendants on sufficient due process notice of the nature of the claims filed against them."

Default Reversed Because Counsel Failed to Inform Other Party and Counsel Knew They Intended to Defend Action

In Makes & Models Magazine Inc. v. Web Offset Printing Co. (2D08-1061), the Second District reversed the trial court's order refusing to vacate a clerks default.

Florida Rule of Civil Procedure 1.500, which allows entry of a clerk's default when a party fails to file or serve any paper in an action, should be liberally construed in favor of deciding cases on the merits...Furthermore, a default is not designed to give a strategic advantage to the plaintiff so that it may obtain a judgment without dealing with the defendant's challenges and defenses.

In Lloyd this court held that "[a] trial court should vacate an ex parte default when 'the plaintiff seeking default had actual knowledge that the defendant was represented by counsel and intended to defend the lawsuit, but failed to contact the defendant's counsel prior to seeking default...If the plaintiff is aware that the defendant is represented by counsel and intends to defend the litigation on the merits, it is required to serve the defendant with notice of the application for default and to present the matter to the court for entry of the default...A default that does not comply with this requirement "must be vacated without regard to whether the defendant can establish a meritorious defense or whether the defendant can demonstrate inadvertence or excusable neglect."

[In its conclusion, the Court stated:]

We cannot conclude without making one final observation. Web Offset's argument pressed for a strict and literal interpretation of the default rules without any regard for civility or for the professionalism expected when one party is aware that the opposing party is represented by counsel and intends to defend against the claims at issue. Although these are not difficult concepts to grasp, post-Lloyd, a party's responsibilities when faced with similar circumstances should be clear.

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.

Default Reversed - Reasonable Misunderstaning Satisfies Excusable Neglect

In Taylor v. Vitetta (4D07-4769), the Fourth DCA reversed the trial court's order because the defendant had satisfied its burden to set aside a default.

A party seeking relief from a clerk’s default must demonstrate excusable neglect in failing to file a responsive pleading, a meritorious defense, and due diligence. Gibson Trust, Inc. v. Office of the Attorney Gen., 883 So. 2d 379, 382 (Fla. 4th DCA 2004). Florida courts have a liberal policy of vacating defaults in order to decide cases on their merits. Id. This court reviews an order denying a motion to vacate pursuant to an abuse of discretion standard. Id.

Concluding that inaction due to reasonable misunderstanding satisfies excusable neglect, the Fourth DCA ultimately concluded all three prongs had been satisfied. Therefore, the default was reversed.