NOTICE: THIS OPINION IS SUBJECT TO REVISION OR
WITHDRAWAL
UNTIL TIME
EXPIRES FOR REHEARING OR FURTHER APPELLATE
REVIEW AND, IF
FILED, DETERMINED
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
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
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 (
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 (
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
________________________________
R. TIMOTHY PETERS
Circuit
Judge, Appellate Division
______________________________ ______________________________
GEORGE M. JIROTKA CYNTHIA
J.
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Honorable
County Court Judge
John E. Thomas, Esquire
Donald and Karin David