Few things are worse than being sued, except for having a default being entered against you because you failed to answer the lawsuit. A default is a determination that the allegations against you are true, and you give up the right to defend a finding of liability in the case. So, what if that happens? Is there anything you can do? It depends.
Florida has a strong preference for lawsuits to be determined on the merits and courts should liberally set aside defaults under appropriate circumstances. However, to set aside a default judgment, a party must show excusable neglect and a meritorious defense and move diligently to vacate the default.
The Second District Court of Appeal in the case of All My Sons Moving & Storage of S.W. Fla., Inc., (“AMS”) v. A&E Truck Service, LLC, recently reversed a trial court’s denial of a motion to vacate a default judgment where the defendant was able to show that the circumstances why it did not timely answer the lawsuit were excusable and the defendant had meritorious defenses to the lawsuit and moved diligently to vacate the default.
The Second District Court of Appeal clarified what circumstances constitute excusable neglect. In AMS, the owner filed an affidavit explaining that AMS had an established procedure for routing important documents and that it had broken down. The owner explained that AMS’ policy is to forward all court documents to her attention: before the pandemic by placing important documents in her incoming mail file, but because she was working exclusively from home during the COVID-19 pandemic, managers were supposed to email court documents to her. The owner stated that the lawsuit would have been forwarded to her if the sales associate who accepted the service had followed the proper procedure. The Second District Court of Appeal concluded that these facts established excusable neglect, that AMS proved it had meritorious defenses and that AMS moved expeditiously to set aside the default.
It is important to obtain legal representation immediately upon being sued and, in the unfortunate event of having a default entered, immediately upon learning of the default. Rosenthal Law Group has extensive experience moving to vacate defaults entered in litigation.