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 (Fla. 6th Cir. App. Ct. Sept. 30, 2006). 










vs.                                                                                    Appeal No.05-0070AP-88A







Appeal from Default Final Judgment

Pinellas County Court

Judge Myra Scott McNary


George J.F. Werner, Esquire

Attorney for Appellant


Leslie Mark Schneider, Esquire

Attorney for Appellee






Schaefer and Downey, JJ.;

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.”

            Before this 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 (Fla. 4th DCA 1999).[1]  Initially, the Court reiterates the well-settled law that Courts favor setting aside defaults so that controversies can be decided on the merits.  See Greer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004); see also Grosheim v. Greenpoint Mortgage Funding, Inc., 819 So.2d 906, 907 (Fla. 4th DCA 2002).  If there is any reasonable doubt in the matter, it should be resolved in favor of granting the motion to set aside the default.  See Grosheim, 819 So.2d at 907.  However, in order to have the default set aside the moving party has the burden to demonstrate excusable neglect, a meritorious defense, and due diligence.  See Greer, 880 So.2d at 720. 

            In reviewing 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 (Fla. 5th DCA 2006); see also Fryer v. Industrial Fire and Casualty Ins. Co., 339 So.2d 285, 287 (Fla. 3d DCA 1976).

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 (Fla. 5th DCA 2002).  As explained in Greer, an attorney’s mistake of law or ignorance of the rules does not constitute excusable neglect.   See Greer, 880 So.2d at 721. 

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 (Fla. 1980)(stating that “[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion”).  In reaching this conclusion the Court notes that Leutert did not testify below and that the only evidence before the trial court was Leutert’s Affidavit that makes the general statement that the facts set forth in the motion to set aside default are true and that he was “medically hampered” at the time of the default.

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.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of September 2006.




                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division







______________________________                        ______________________________

LAUREN LAUGHLIN                                              BRANDT C. DOWNEY, III

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division




Copies furnished to:


Judge Myra Scott McNary


George J. F. Werner, Esquire

1324 Palmetto Street

Clearwater, FL  33755


Leslie Mark Schneider, Esquire

7765 S.W. 87th Avenue, # 101

Miami, FL  33173



[1] The Court finds that this is the appropriate standard of review while recognizing that there has been a divergence of opinions on the matter.  See King-Coleman v. Geathers, 841 So.2d 593, 596 (Fla. 4th DCA 2003)(citing to cases applying various standards of review in default cases).