NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

 

 

LAW OFFICE OF JAMES M. THOMAS,

ESQUIRE, P.A.,

Appellant, Case No. 10-000031AP-88A

UCN: 522010AP000031XXXXCV

 

v.

 

ROBERT L. JONES, INC.,

Appellee.

______________________________________/

 

Opinion Filed ______________

 

Appeal from Final Judgment

Pinellas County Court

Judge Kathleen T. Hessinger

 

James M. Thomas, Esq.

Attorney for Appellant

 

Brian L. Barker, Esq.

Attorney for Appellee

 

PER CURIAM.

The Law Office of James M. Thomas, Esquire, P.A. appeals the Final Judgment entered in favor of Robert L. Jones, Inc. on July 6, 2010. Upon review of the briefs and the original and supplemental record on appeal, this Court dispensed with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. We affirm.

On March 11, 2010, Robert L. Jones, Inc. (Jones) filed a complaint in the Small Claims Division of the County Court, Case Number 10-001517SC for account stated seeking damages for services provided to the Law Office of James M. Thomas, Esquire, P.A. (Law Office). The pretrial conference was scheduled for April 15, 2010. The Return of Service states that the Summons, Complaint, and Notice of Pretrial Hearing were served upon the Law Office by corporate service on James M. Thomas on April 6, 2010. The Notice of Pretrial Hearing specifically states in pertinent part:

The defendant(s) must appear in court on the date specified in order to avoid a default judgment. The plaintiff(s) must appear to avoid having the case dismissed for lack of prosecution. A written MOTION or ANSWER to the court by the plaintiff(s) or defendant(s) shall not excuse the personal appearance of a party or its attorney in the pre-trial conference. The date and time of the PRE-TRIAL CONFERENCE CANNOT be rescheduled without good cause and prior court approval.

 

(Emphasis in original.)

A "Motion to Reset Pretrial Conference and Notice of Unavailability" with a certificate of service dated April 12, 2010, was filed with the Clerk of Court on April 14, 2010. In the motion, the Law Office states that it received the process that was served upon a "lower level staff member" in the Law Office "in the past couple of days." The motion states that Attorney Thomas will be out of the country and unavailable for any purpose until after April 29, 2010. The Law Office requested that the April 15, 2010, pretrial conference be reset. The Law Office did not state whether counsel for Jones agreed to or opposed the motion.

On April 15, 2010, counsel for Jones appeared at the pretrial conference and no one appeared on behalf of the Law Office. The trial court entered a default against the Law Office for failure to appear at the pretrial conference "and to otherwise serve or file any paper or pleading as required by Law."

On May 3, 2010, the Law Office filed a Motion to Set Aside Default that is not personally signed by Attorney Thomas or any member of the Florida Bar. The signature line was marked by a rubber stamp of Attorney Thomas's signature. In the motion the Law Office states that it filed the motion to reset pretrial conference because Attorney Thomas would be out of the country and there are no other lawyers at the law firm to cover hearings in Attorney Thomas's absence. The motion continues, "Additionally, the attachment to the complaint fails to establish that the [Law Office] owes the money sought. No evidence has been provided that the [Law Office] is personally responsible for clients' debts."

On June 3, 2010, a hearing was conducted on the Law Office's motion to set aside default. At the hearing, in open court, the Law Office filed the affidavit of Attorney Thomas and his paralegal Carol L. Aiken. In her affidavit, Ms. Aiken explained that the trial court judge's judicial assistant informed Ms. Aiken that a hearing on the motion was required; but the judicial assistant did not provide a hearing time for the motion to be considered by the trial court.

In his affidavit, Attorney Thomas stated that he was not properly served with the summons and notice of pretrial hearing and; therefore, he did not learn of the case until April 12, 2010. He indicates that he was scheduled to be away from work and out of the office from April 15, 2010, through May 5, 2010.

On June 3, 2010, the trial court announced in open court its decision to deny the motion to set aside the default. In the June 8, 2010, "Order Denying the Motion To Set Aside Default," the trial court stated that to be relieved of a default, a defendant must meet a three-part test. There must be a showing of (1) excusable neglect, (2) due diligence in seeking relief after learning of the default, and (3) a meritorious defense must be presented.

The trial court found that the Law Office had demonstrated excusable neglect in failing to set the motion for a hearing prior to the date of the pretrial conference. With regard to a determination of whether there had been a showing of due diligence, the trial court noted that the motion to set aside default was not signed by an attorney, but merely had a signature file stamp. The trial court held that pursuant to Florida Rule of Judicial Administration 2.515, there must be an original attorney signature on pleadings and papers; and pleadings may be stricken if not in compliance with the rule. The trial court determined that it would not strike the motion, but considered it to be unverified and lacking the attorneys' presumed certification under the rule. Although the trial court did not make a specific ruling in its order, for purposes of this opinion, this Court will presume the trial court found due diligence by the Law Office.

The trial court did specifically find that the Law Office did not file a defensive pleading showing a defense, "nor did it file a sworn motion or affidavit setting forth a meritorious defense." While the Law Office filed Attorney Thomas's affidavit with the trial court on June 3, 2010; the affidavit did not set forth a meritorious defense. In a separate order, a Final Judgment was entered for Jones on June 8, 2010.

On June 7, 2010, more than a month after the motion to set aside default was filed and four days after the trial court's announcement in open court that the motion was denied, the Law Office filed another Affidavit of Attorney Thomas in support of the motion to set aside default. The affidavit alleged the defense of setoff and attached correspondence from Attorney Thomas dated June 1, 2010, addressed to counsel for Jones referencing a setoff or potential counterclaim with attachments.

Analysis

The decision to deny a motion to set aside a default by the Small Claims Division of the County Court is reviewed for an abuse of discretion by the Circuit Court acting in its appellate capacity. See E.G. Systems, Inc. v. David, 15 Fla. L. Weekly Supp. 215b (Fla. 6th Cir. App. Ct. Oct. 16, 2007). If there is any reasonable doubt in the matter, it should be resolved in favor of granting the motion to set aside the default.

The Law Office first argues that pursuant to Florida Small Claims Rule 7.190(b), in the Small Claims Division of the County Court there is no requirement for a meritorious defense to be presented in order to set aside a default. It cites to a 1999 appellate decision of the Nineteenth Judicial Circuit to support its argument. See Hertrich v. Lamee, 6 Fla. L. Weekly Supp. 549a (Fla. 19th Cir. App. Ct. April 13, 1999). It also assets that the requirement to establish a meritorious defense is found in the Florida Rules of Civil Procedure which have not been invoked in this matter. The Florida Small Claims Rules apply.

This Court previously has held that in order to set aside a default, a meritorious defense must be established under rule 7.190(b). See E.G. Systems, 15 Fla. L. Weekly Supp. 215b ("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."). Rule 7.190(b) tracks the language of Florida Rule of Civil Procedure 1.540(b) and this Court concludes that E.G. Systems properly determined that a meritorious defense must be demonstrated. We will not follow an appellate decision of another circuit court reaching a contrary decision.

The second issue to be determined on appeal is whether the trial court abused its discretion when it found that the Law Office failed to establish a meritorious defense in order to set aside the default. To establish a meritorious defense, the defendant must tender either a defensive pleading showing the defense or a sworn motion or affidavit stating the facts supporting the meritorious defense. Hill v. Murphy, 872 So. 2d 919, 921 (Fla. 2d DCA 2003)(citing Coquina Beach Club Condo. Ass'n v. Wagner, 813 So. 2d 1061, 1064 (Fla. 2d DCA 2002)).

On the day of the hearing, the Law Office filed two affidavits in support of the motion to set aside default. The affidavits did not mention or present a meritorious defense. The motion to set aside default endorsed with a signature stamp is not a sworn or verified document. See Jimenez v. Ratine, 954 So. 2d 706, 707 (Fla. 2d DCA 2007)("To 'swear' means to declare on oath that the facts alleged are true."); 92.525, Florida Statutes (2010)(verification). The Law Office filed the motion to set aside default, but has never filed a defensive pleading. "A motion is not a pleading." Sardon Found. v. New Horizons Serv. Dogs, Inc., 852 So. 2d 416, 421 (Fla. 5th DCA 2003)(emphasis in original).

Florida Rule of Judicial Administration 2.515(a)[1] addresses the requirements for an attorney's signature on pleadings and other papers filed in the record. The rule states,

Except when otherwise specifically provided by an applicable rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by the attorney that the attorney has read the pleading or other paper; that to the best of the attorney's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.

 

(Emphasis added.) This Court repeats that the Law Office's motion to set aside the

default is not a pleading. There are no Florida cases on point as to whether a motion filed with the stamped signature of an attorney is considered to constitute a certificate by the attorney in accordance with rule 2.515(a).

However, the decision as to whether the signature stamp was sufficient to constitute a certificate by the attorney in accordance with rule 2.515(a) is not dispositive of this case. Even if the motion is considered to be certified by Attorney Thomas in accordance with rule 2.515(a), to demonstrate a meritorious defense in support of a motion to set aside a default there must be a defensive pleading, affidavit, or a sworn motion. See Hill, 872 So. 2d at 921.

We conclude that the trial court did not abuse its discretion in determining that the unsworn motion to set aside default with the rubber-stamped signature of an attorney was insufficient to present a meritorious defense in order to set aside a default. See Jimenez v. Ratine, 954 So. 2d 706, 707 (Fla. 2d DCA 2007); Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).

Next, the Law Office argues that pursuant to Florida Rule of Civil Procedure 1.500(b), it was entitled to notice of application for default because before the default was entered it filed the Motion to Reset Pretrial Conference. However, as has been argued by Attorney Thomas, this case is controlled by the Florida Small Claims Rules which has its own rule governing defaults. Florida Small Claims Rule 7.170(a) states, "If a defendant does not appear at the scheduled time, the plaintiff is entitled to a default to be entered by the judge or the clerk." The Small Claims Rules do not require notice of an application for default. Further, in the Summons and Notice of Hearing the Law Office was notified that it must appear at the pretrial hearing in order to avoid a default judgment.

Finally, the Law Office argues that the trial court abused its discretion when it denied its "Motion for Rehearing on Motion to Vacate Default; Motion to Set Aside Default Final Judgment; and Memorandum of Law." The Florida Small Claims Rules do not expressly provide for motions for rehearing. Further, a motion for rehearing from orders granting or denying motions seeking relief from judgment are unauthorized.[2] In re Amendments to The Florida Rules of Appellate Procedure, 2 So. 3d 89, 90-93 (Fla. 2008); Florida Rule of Appellate Procedure 9.130(a)(5); see SunTrust Bank v. Hodges, 12 So. 3d 1278, 1281 (Fla. 4th DCA 2009); Drak, L.L.C. v. Salcines Dev., Inc., 5 So. 3d 713, 713 (Fla. 3d DCA 2009). However, the rules do permit the filing of a motion for new trial under Florida Small Claims Rule 7.180. See Arafat v. U-Haul Center Margate, 36 Fla. L. Weekly D1347 (Fla. 4th DCA July 22, 2011)(mandate issued July 8, 2011). The "Motion for Rehearing on Motion to Vacate Default; Motion to Set Aside Default Final Judgment; and Memorandum of Law" shall be treated as a motion for new trial.

In the motion for new trial, the Law Office acknowledges that the " 'setoff' evidence package" which allegedly had been served on Jones was not filed or presented to the trial court prior to or at the hearing on the motion to set aside default. In the motion, the Law Office does not refer to the second affidavit of Attorney Thomas filed on June 7, 2011, after the hearing on the motion to vacate the default.

The trial court did not make reference to the second affidavit of Attorney Thomas or the "setoff evidence" when it denied the motion to set aside default because the documents had not been filed at the time of the hearing and when the trial court made its oral ruling. This Court holds that the Law Office's argument in the motion for new trial that it could not in good faith file the "setoff evidence" with the trial court at the time of the June 3, 2010, hearing is without merit.

A motion for a new trial is addressed to the sound judicial discretion of the trial court, and the presumption is that it exercised that discretion properly. Unless it clearly appears that the trial court abused its discretion, the action of the trial court will not be disturbed by the appellate court. Allstate Ins. Co. v. Manasse, 707 So. 2d 1110, 1111 (Fla. 1998).

We conclude that the trial court did not abuse its discretion when it denied the Motion To Set Aside Default or when it denied the "Motion for Rehearing on Motion to Vacate Default; Motion to Set Aside Default Final Judgment." The Final Judgment for Robert L. Jones, Inc. is affirmed.

Affirmed.

DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this ____ day of _________________, 2011.

 

 

Original order entered on August 18, 2011 by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

 

 

Copies furnished to:

 

James M. Thomas, Esq.

1581 Main Street

Dunedin, FL 34698

 

Brian L. Barker, Esq.

2600 First Ave. North

St. Petersburg, FL 33713

 

Hon. Kathleen T. Hessinger



[1] Rule 2.515(c)(1), states:

The signatures required on pleadings and papers by subdivisions (a) and (b) of this rule may be:

(A) original signatures;

(B) original signatures that have been reproduced by electronic means, such as on electronically transmitted documents or photocopied documents; or

(C) any other signature format authorized by general law, so long as the clerk where the proceeding is pending has the capability of receiving and has obtained approval from the Supreme Court of Florida to accept pleadings and papers with that signature format.

[2] The order denying the motion to set aside the default and the final judgment were both docketed by the Clerk of Court and rendered on June 9, 2010. The July 9, 2010, notice of appeal was timely filed.