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338 So. 2d 270

Docket No. 76-682.

Claffey v. Serafino

John CLAFFEY and Jo Ann Claffey, Husband and Wife, Appellants, v. Andrew P. SERAFINO, Appellee.

District Court of Appeal of Florida

Decided October 22, 1976.

District Court of Appeal of Florida · decided 1976-10-22

Key passage — most relied on by later courts

“The failure of a party to take the required steps necessary to protect its own interests, cannot, standing alone, be grounds to vacate judicially authorized acts to the detriment of other innocent parties. The law requires certain diligence of those subject to it, and this diligence cannot be lightly excused. The mere assertion by a party to a lawsuit that he does not comprehend the legal obligations attendant to service of process does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect to warrant the vacating of a final judgment.”

quoted by 1 later decision, including 567 So. 2d 909 - Goldome v. Davis

Relies on 160 So. 2d 733 - Florida Investment Enterprises, Inc. v. Kentucky Co. · 314 So. 2d 189 - Freedman v. Geiger

Good law ✅— No negative treatment on recordhow we know

Decided 1976-10-22

How this case has been cited

Cited by 16 later decisions — most recently September 2011

16 state decisions

10019761980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*271 Steven L. Sommerfield, Venice, for appellants.

¶2John J. Dulmer, Jr., of Snyder & Dulmer, Venice, for appellee.

¶3BOARDMAN, Acting Chief Judge.

¶4Appellants on January 20, 1976 filed suit for ejectment against appellee. Appellee failed to answer the complaint, and a default was entered March 16, clearly more than twenty days after service of the summons and copy of the complaint. The final judgment was rendered the next day. On March 26 appellee moved for a rehearing and for relief from the final judgment. This is an appeal from the trial court's order of April 7 vacating the final judgment and default.

¶5The Florida courts have liberally applied Fla.R.Civ.P. 1.540(b) to set aside defaults to permit trial on the suits. See Freedman v. Geiger,314 So.2d 189 (Fla. 3d DCA 1975). Nonetheless the burden is on the movant to establish both a legal excuse for failure to comply with the rules and a meritorious defense. E.g. Florida Investment Enterprises, Inc. v. Kentucky Co.,160 So.2d 733 (Fla. 1st DCA 1964). The affidavit submitted by appellee to the trial court in support of his motion states that he did not understand his legal obligations attendant to service of process and receipt of the complaint. He submits that his misimpression that he would receive further notice of the proceedings was legal cause for his failure to answer the complaint. Prior to the institution of this action appellee was advised by his usual attorneys that they could not represent him in a dispute between him and appellants. He did not contact other counsel until several days after the entry of the final judgment. We believe that appellee's failure to take action in these circumstances is not sufficient to meet the required showing of "mistake, inadvertence, surprise or excusable neglect" as provided in Fla.R.Civ.P. 1.540(b).

¶6Furthermore the record does not reflect that appellee has a meritorious defense to the suit for ejectment. The mere conclusory statement in his motion to that effect is insufficient.

¶7Accordingly we reverse and remand to the trial court with directions to vacate the order of April 7, 1976.

¶8GRIMES and SCHEB, JJ., concur.

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