County Civil Court: CIVIL PROCEDURE – default
– excusable neglect - trial court’s decision to deny motion to set aside
default judgment is reviewed under the abuse of discretion standard – trial
court did not abuse its discretion in finding that defendant failed to
establish excusable neglect – undisputed testimony established that defendant
received summons and complaint but did not respond due to his own
misunderstanding of the litigation process – judgment affirmed. Leutert
v. Portfolio Recovery Associates, LLC,
Appeal No. 05-0070AP-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No.05-0070AP-88A
Appeal from Default Final Judgment
Judge Myra Scott McNary
George J.F. Werner, Esquire
Attorney for Appellant
Leslie Mark Schneider, Esquire
Attorney for Appellee
ORDER AND OPINION
Laughlin, J., Dissenting
THIS CAUSE came before the Court on appeal, filed by Ronald Leutert (Leutert), from the Default Final Judgment, entered June 17, 2005, in favor of Portfolio Recovery Associates, LLC (Portfolio). Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.
The record shows that Portfolio filed a Complaint for Damages against Leutert seeking to collect on a debt in the amount of $ 9,803.53 as a result of a credit card agreement between Leutert and MBNA National Bank. The Complaint alleges that Portfolio is the owner and holder of the debt pursuant to an assignment from MBNA. The Complaint attached the cardholder agreement and the final statement of account showing a charge-off adjustment resulting in a zero balance.
Leutert was served with the Summons and Complaint on March 1, 2005, but did not file a response. Three months later, on June 14, 2005, Portfolio filed a Motion for Default and a Motion for Default Final Judgment, along with supporting affidavits. The trial court entered its Default Final Judgment on June 17, 2005. Leutert filed, on July 12, 2005, a motion to set aside the Default Final Judgment which came before the trial court on July 26, 2005. After considering the evidence presented and argument of counsel, the trial court denied the motion finding that the “Defendant has not shown excusable neglect as [to] why he did not file a response to the Complaint.”
Court, Leutert argues that the trial court abused its discretion is failing to
set aside the Default Final Judgment as Leutert established a meritorious
defense and excusable neglect. This
Court reviews the trial court’s decision to deny Leutert’s motion to set aside
default judgment under the abuse of discretion standard. See George v. Radcliffe, 753
So.2d 573, 575 (
the three prongs, the Court finds that it is undisputed that Leutert acted with
due diligence in moving to set aside the Final Default Judgment. In reviewing the excusable neglect prong, the
Court finds that there is no precise definition of excusable neglect and that it
is a general concept the trial court must consider on a case-by-case
basis. See Boudot v. Boudot,
925 So.2d 409, 415 (
As presented to the trial court,
Leutert acknowledged that he received the Summons and Complaint, which directed
Leutert to file an answer within twenty days.
Nonetheless, Leutert, who had some experience with litigating matters in
small claims court, argues that he thought he would be able to orally present
his case without having to file a responsive pleading. The Court finds that Leutert, who chose to
represent himself until after the Final Default Judgment was entered, was bound
by the same rules as counsel. See Stueber v. Gallagher, 812 So.2d 454, 457
This is not a case where something unexpected happened which lead to “a system gone awry” or some other unpredictable human foible. Rather, it is a situation where Leutert received the Summons and Complaint and simply did not proceed as directed due to his own misunderstanding of the litigation process. As explained in Fryer v. Industrial Fire and Casualty Ins. Co., 339 So.2d 285, 287 (Fla. 3d DCA 1976): “Inadvertence or mistake cannot be held as a matter of law sufficient to excuse compliance; it may be in some instances but not in others. It is the duty of the trial court and not the appellate courts to make that determination.” See also John Crescent, Inc. v. Schwartz, 382 So.2d 383, 385-86 (Fla. 4th DCA 1980)(finding that 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”).
To the extent that Leutert may have
been confused or misled by telephonic communication with MBNA and the
pleadings, the trial court was charged with determining whether such
constituted excusable neglect. After
reviewing the record on appeal, the Court cannot conclude that the trial court
abused its discretion in finding that Leutert failed to establish excusable
neglect. See Canakaris v.
Canakaris, 382 So.2d 1197, 1203 (
Based on the foregoing, the Court need not address the remaining issue of whether Leutert met his burden of demonstrating a meritorious defense.
Laughlin, J., Dissent
Under the facts presented by this case, I disagree with the majority the Leutert failed to established excusable neglect. I find that the trial court abused its discretion in failing to resolve all reasonable doubts in favor of setting aside the Default Final Judgment so that the matter could be decided on the merits. See Greer, supra; Grosheim, supra.
Therefore, it is,
ORDERED AND ADJUDGED that the Final Default Judgment is affirmed.
ORDERED in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
LAUREN LAUGHLIN BRANDT
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Judge Myra Scott McNary
George J. F. Werner, Esquire
Leslie Mark Schneider, Esquire