ERROR TO SET ASIDE DEFAULT JUDGMENT WHEN DEFENDANT FAILED TO PROVE THAT THE FAILURE TO FILE A RESPONSIVE PLEADING WAS THE RESULT OF EXCUSABLE NEGLECT.
Chernoff Diamond and Co. v. Gallin Associates, Inc., 43 Fla. L. Weekly D2541 (Fla. 2nd DCA November 14, 2018):
While a trial court’s order of this kind is reviewed for a gross abuse of discretion, in this case, the record demonstrated that the defendant’s president was served with the complaint, and knew he had to respond. Yet, he put the complaint and the summons in a drawer, left for vacation and forgot about the lawsuit until he received notice of the entry of a final judgment.
Defaults will not be set aside where the defaulting party or his or her attorney (1) simply forgets or (2) intentionally ignores the necessity to take appropriate action (i.e., where the conduct could reasonably be characterized as grossly negligent or a willful and intentional refusal to act).
In this case, there was no showing of excusable neglect, and as such, the court reversed the order vacating and reinstated the default judgment.