The Third District Court of Appeal recently issued an opinion addressing the test for whether a party may receive relief from a default judgment. See Airport Centre, Inc., v. Jorge Ugarte, et al., No. 3D11-2997 (Fla. 2nd DCA July 11, 2012)(the “Opinion”). In order for the court to grant a motion to set aside a default judgment, the moving party is required to show the trial court three things: (1) the party’s failure to file a responsive pleading was due to excusable neglect; (2) the movant has a meritorious defense to the underlying action; and (3) the moving party acted “with due diligence in seeking relief from the default.” Opinion at *2, citing Lazcare Int’l v. Caraballo, 957 So. 2d 1191, 1192 (Fla. 3d DCA 2007).
The Court in Airport Centre found that the record on appeal lacked all of the “legal prerequisites” necessary for a party to be relieved of a default judgment. Opinion at *2. Although the Court did not elaborate about the facts of the underlying case, it did cite to prior opinions in the Second and Third District Court of Appeal that elaborate on what is required for a court to vacate a default judgment. For example, the Court noted that in order to satisfy the “meritorious defense” requirement, the defense must be asserted by either a pleading or affidavit. A general denial will not suffice. Opinion at *2, citing Geer v. Jacobsen, 880 So. 2d 717, 721 (Fla. 2d DCA 2004). Further, in establishing “excusable neglect,” the neglect that led to the default judgment cannot be the result of the negligence of counsel. Opinion at *2, citing Herrick v. Se. Bank, 512 So. 2d 1029 (Fla. 3d DCA 1987). Finally, time is critical when trying to establish a movant acted with “due diligence” in seeking relief from the default. Cases where movants waited five weeks and seven weeks before seeking relief from default judgments were unacceptable. Opinion at *2 (further citations omitted).
The Airport Centre opinion reminds us that if you seek to vacate a default judgment, be prepared to show that the failure to timely respond was due to a reasonable mistake by the movant, set forth facts which support a viable defense to the underlying claim, and equally important, do not delay in seeking relief from the default judgment.