06-1957 CHURCH V. CHURCH

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Third District Court » 2006 » 06-1957 CHURCH V. CHURCH

State: Florida

Court: Florida Third District Court

Docket No: 06-1957 CHURCH V. CHURCH

Case Date: 12/27/2006

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006

THE CHURCH OF CHRIST WRITTEN IN HEAVEN, INC., a Georgia non-profit corporation, Appellant, vs. THE CHURCH OF CHRIST WRITTEN IN HEAVEN OF MIAMI, INC., a Florida corporation, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 03-16110 CASE NO. 3D06-1957

Opinion filed December 27, 2006. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Robert N. Scola, Jr., Judge. Smoler Lerman Bente & Whitebook, and Kathleen Bente, for appellant. Mendez & Mendez, and Sergio Mendez, for appellee.

Before GERSTEN, GREEN, and RAMIREZ, JJ. PER CURIAM. The Church of Christ Written in Heaven, Inc., a Georgia non-profit corporation, appeals an order vacating a default

judgment entered against appellee The Church of Christ Written in Heaven of Miami, Inc., a Florida corporation. We reverse

because the local Miami church failed to establish excusable neglect and a meritorious defense sufficient to allow the trial court to vacate the default final judgment. The Georgia church filed an amended complaint which it

served upon the local Miami church on April 14, 2005.

The local

Miami church did not respond to the amended complaint and the Georgia church moved for the entry of a default. The clerk

entered a default against the local Miami church.

On June 27,

2005, the court entered a default final judgment against the local Miami church. The local Miami church thereafter moved to vacate the final default judgment. In its unverified motion, the local Miami church alleged that its failure to file a response was due to mistake, inadvertence and excusable neglect, and that it had a meritorious defense. At the hearing on the motion to

vacate, Arturo Alfonso, who had been counsel for a separate defendant, testified that he had failed to file an Answer on

behalf of the local Miami church at the time during which he filed one on behalf of the separate defendant. Alfonso also

testified that he had never been retained to represent the local Miami church. The trial court subsequently determined that there had been a showing of excusable neglect and granted the motion, finding

2

that "while all of the procedural requirements may not have been met at the outset, they [had], over the history of the case, been met." We find that the motion to vacate was legally

insufficient. Florida law requires the party who moves to vacate the entry of a default and default judgment to demonstrate

excusable neglect, a meritorious defense, and due diligence in order for the trial court to vacate a default and default

judgment.

See North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 Jacobsen, 880 So. 2d 717 (Fla. 2d DCA

(Fla. 1962); Geer v.

2004); Dade Cty. v. Lambert, 334 So. 2d 844 (Fla. 3d DCA 1976). Excusable affidavits. neglect See must Geer, be 880 proved So. 2d by at sworn 720. statements A or

conclusory

assertion that a meritorious defense exists is insufficient to demonstrate the existence of a meritorious defense. Id. at 721.

A party's failure to satisfy these requirements is fatal to the success of a motion to vacate. The local Miami church's Id. motion to vacate contained no

evidence of excusable neglect or meritorious defense. The local Miami church's motion to vacate contained only a bare allegation of excusable neglect and meritorious defense. The motion was unverified and it did not contain any accompanying affidavit in support. The motion was thus legally insufficient. Furthermore, at the hearing on the motion, the local Miami church did not

3

present any testimony to support a showing of excusable neglect. Alfonso's stated actually neglect. Although courts favor the disposition of cases on the testimony he at the hearing on the the motion, Miami of where he

that

never

represented Miami

local claim

church, excusable

disproved

local

church's

merits, a trial court abuses its discretion when it sets aside a default motion judgment to vacate. underlying See Geer, which 880 is So. a 2d legally at insufficient We must

720.

therefore reverse the trial court's order vacating the default final judgment. Reversed.

4

Download 06-1957 CHURCH V. CHURCH.pdf