Fourth DCA
Wolf v. Peter M. Habashy, P.A.
4th DCA
5/24/23, Judge Warner
Topics: Default Judgment; 1.540 Motion
Dr. Habashy’s corporation sued Mr. and Mrs. Wolf, a married couple, for paying for dental services with a worthless check. On the same day that a default was entered against them, their attorney filed a notice of appearance and a motion for extension of time. The following day, the attorney filed a motion to vacate the default judgment. A few days later, the attorney filed an answer with 28 affirmative defenses. The main thrust of the defense was that the Wolfs stopped payment on the check because the work was substandard and Mrs. Wolf had to obtain extensive additional dental work somewhere else. (NOTE: With a wolf disputing a dental charge, there’s got to be a good joke in there somewhere. “All the better to sue you with,” something like that. I’ll keep working on it.)
The trial court set aside the default judgment and set the case for trial. But then the Wolf’s lawyer missed a case management conference, and the trial court entered ANOTHER default and then a default final judgment the following day.
Six days later, a new attorney filed a notice of appearance on behalf of the Wolfs and filed a motion to set aside the second default. The motion sought relief under Rule 1.540(b), alleging excusable neglect and a meritorious defense. The prior attorney filled out an affidavit making his case for excusable neglect. First, he said that he didn’t receive the hearing notice because his credentials on the statewide e-filing portal had lapsed. Second, he claimed he and his family were dealing with a serious medical issue. Third, he claimed that he had an extreme caseload and staff shortages. Fourth, he claimed that the dentist’s attorney “had caused confusion, because another attorney had filed a second suit on the same worthless check charge against appellants, and prior counsel had discussions with appellee’s attorney with respect to this second suit, believing that appellee would be dismissing the first suit.” The Wolfs also filed an affidavit stating that they sought new counsel as soon as they learned of the default and their prior lawyer’s failure to attend the case management conference.
The dentist offered no evidence, but argued that a second default was cause for a crackdown.
The trial court agreed and found no excusable neglect. The Wolfs appealed.
The DCA noted that in order to set aside a default final judgment under Rule 1.540(b), the trial court must find excusable neglect, a meritorious defense, and due diligence in seeking relief.
The DCA held that excusable neglect had been shown for the reasons provided by the lawyer. Also, there was a meritorious defense, as intent to defraud—not intent to dispute the charges—is required for the cause of action.
The trial court did not address due diligence, but the motion was filed within six days of the default, which constituted due diligence.
https://supremecourt.flcourts.gov/content/download/869439/opinion/223122_DC13_05242023_ 101221_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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