NOTICE:  THIS OPINION IS SUBJECT TO REVISION OR WITHDRAWAL

UNTIL TIME EXPIRES FOR REHEARING OR FURTHER APPELLATE

REVIEW AND, IF FILED, DETERMINED

 

County Civil Court:  CIVIL PROCEDURE – Default – abuse of discretion – trial court did not abuse its discretion in not setting aside Final Judgment entered upon default – the defendants failed to set forth a meritorious defense of any kind - Final Judgment affirmed.  E.G. Systems, Inc., d/b/a Scotts Lawn Care v. David, Appeal No. 07-0015AP-88A (Fla. 6th Cir. App. Ct. Oct. 16, 2007). 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

 

E.G. SYSTEMS, INC., d/b/a

SCOTTS LAWN CARE,

                        Appellant,

vs.                                                                                    Appeal No. 07-0015AP-88A

                                                                                        UCN522007AP000015XXXXCV

 

DONALD V. DAVID and

KARIN A. DAVID,

                        Appellees.

______________________________________/

Appeal from Pinellas County Court

Small Claims Division

 

John E. Thomas, Esquire

Attorney for Appellant

 

Donald and Karin David

Appellees, pro se

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by E.G. Systems, Inc., d/b/a Scotts Lawn Care (Scotts), from the Order Denying Defendant’s Motion to Vacate Final Judgment, entered February 22, 2007.  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, on November 20, 2006, Donald V. David and Karin A. David (the Davids), filed a Statement of Claim in Small Claims Court against Scotts seeking damages in the amount of $ 5,000.00, for having to replace dead grass as a result of Scotts’ lack of care and attention to their property.  The complaint was served on CT Corporation, Scotts’ agent for service of process, on November 28, 2006.  The trial court set a pre-trial hearing for December 12, 2006.  Scotts failed to appear for the hearing resulting in the entry of the Default and Default Judgment awarding the Davids $ 4,490.00, plus costs. 

Scotts filed a Motion for Relief from Judgment, on January 16, 2007, arguing that the Default Judgment should be set aside.  In support of its Motion, Scotts filed the Affidavit of Ivan C. Smith, Associate General Counsel for Scotts, wherein Mr. Smith stated the complaint was not forwarded to Scotts’ Risk Management Department because the intake person was out on medical leave.  The Affidavit also states that the complaint was not handled in a timely manner because Scotts had decided to close out the Davids’ customer service file after determining that it had exhausted its efforts to resolve the Davids’ concerns regarding their lawn.  The trial court denied Scotts’ Motion for Relief from Judgment finding that the Scotts’ affidavit had failed to set forth a meritorious defense.

The issue before this Court is whether the trial court abused its discretion in not setting aside the Default and Default Judgment.  See Lloyd’s Underwriter’s at London v. Ruby, Inc., 801 So.2d 138, 139 (Fla. 4th DCA 2001)(stating that the standard of review from a judgment denying a motion to vacate a default final judgment is abuse of discretion).  In reviewing this issue, the Court initially reiterates the well-settled law that courts favor setting aside defaults so that controversies can be decided on the merits.  See Geer 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 Geer, 880 So.2d at 720. 

In applying the three-prong test, it is clear that Scotts acted with due diligence, filing its Motion for Relief from Judgment only a few weeks after the Default Judgment was entered.  In looking at the two other prongs, the Court finds that the only evidence presented to the trial court during the hearing on whether to vacate the Default Judgment was the Affidavit of Ivan C. Smith.  The Affidavit focuses solely on Scotts’ excusable neglect and fails to set forth a meritorious defense of any kind.  Hence, the meritorious defense prong of the test was not met.

While it is not necessary to address the excusable neglect prong under the facts of this case, the Court finds that Mr. Smith states that there was excusable neglect because Scotts’ complaint-intake employee, apparently the only person responsibility for this task, was out sick.  The Affidavit also states that the complaint slipped through the cracks because Scotts made the decision to close the Davids’ customer service file, finding that Scotts had “exhausted its efforts” to resolve the matter.  It’s unclear why Scotts would close the Davids’ file, as the record shows that there had been several communications between the Davids and Scotts, including a letter sent by the Davids’ attorney, dated September 19, 2006, indicating a clear intent to initiate litigation if the matter could not be immediately resolved. 

Accordingly, the Court concludes that the trial court did not abuse its discretion in denying Scotts’ Motion for Relief from Judgment.  See Lloyd’s, supra; see also  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”).  This is supported by the fact that there is no transcript of the hearings below.  See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979).  Lastly, the Court notes that the record contains an abundance of evidence submitted by the Davids in support of their claim and the resulting final judgment.

            Therefore, it is,

ORDERED AND ADJUDGED that the Order Denying Defendant’s Motion to Vacate Final Judgment is affirmed. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of October 2007.

 

                                                     ________________________________

                                                     R. TIMOTHY PETERS

                                                     Circuit Judge, Appellate Division

 

 

 

 

______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division

 

Copies furnished to:

 

Honorable Myra Scott McNary

County Court Judge

 

John E. Thomas, Esquire

501 East Jackson St., Suite 200

Tampa, FL  33602

 

Donald and Karin David

204 Silver Moss Lane

Tarpon Springs, FL  34688