HUBERT FISCHER & ANGELES DE FISCHER, APPELLANTS,
v.
BARNETT BANK OF SOUTH FLORIDA, N.A., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Defendants appealed the trial court's denial of their motion to vacate a default declaratory decree. The Florida appellate court affirmed, holding that the defendants failed to establish either excusable neglect for missing the deadline or due diligence in seeking relief afterward.
The defendants failed to meet their burden on both grounds. Their neglect in leaving Venezuela for Europe without mail monitoring was grossly negligent and entirely inexcusable, particularly given their awareness of the pending controversy. Additionally, their five-week delay in contacting counsel after returning and learning of the judgment was inexcusable and demonstrated a lack of due diligence.
[1] A party seeking to vacate a default judgment based on excusable neglect must demonstrate that their failure to respond was due to a reason that would excuse the default,…
[2] Leaving the country for an extended period without arranging for mail monitoring or instructions for responding to potential lawsuits constitutes inexcusable neglect.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the defendants' failure to timely respond to the properly served petition herein was certainly due to their neglect, but their neglect was entirely inexcusable”
Establishes the court's conclusion that the defendants did not meet the excusable neglect standard required to vacate a default judgment
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHubert and Angeles de Fischer were defendants in a declaratory judgment action brought by Barnett Bank. They were properly served by publication and c…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Declaratory Decree cases and more on FLexlaw
PER CURIAM.
This is an appeal by the defendants Hubert Fischer and Angeles de Fischer from a trial court order denying their motion to vacate an adverse final declaratory decree entered below on a default. We affirm the order under review for two reasons.
First, the defendants have failed to establish, as required by Florida law, that they did not timely respond to the petition for declaratory decree due to their excusable neglect. The defendants were properly served by publication and copies of the subject petition were mailed to them at their residence in Venezuela. The defendants, however, had just left Venezuela for a two-month visit in Europe without leaving anyone to monitor their mail while they were gone — although they were fully aware of the pending controversy in the instant case and were represented thereon by counsel in Miami during part of the pre-litigation negotiations.
In sum, the defendants’ failure to timely respond to the properly served petition herein was certainly due to their neglect, but their neglect was entirely inexcusable. Plainly, they should have had someone monitor their mail while they were away in Europe and left instructions as to how to respond to any lawsuit filed against them, in their absence, relating to the pending controversy in Miami. Their failure to do so was grossly negligent and inexcusable. Winter Park Arms, Inc. v. Akerman, 199 So. 2d 107, 108-09 (Fla. 4th DCA 1967); Somerville v. Skidmore, 175 So. 2d 575, 576 (Fla. 3d DCA 1965); see Florida Investment Enters, v. Kentucky Co., 160 So. 2d 733, 737 (Fla. 1st DCA 1964).
Second, the defendants have failed to establish, as required by Florida law, that they acted with due diligence in seeking to set aside the final declaratory decree. The defendants obtained the final judgment against them shortly after they returned to Venezuela from Europe; yet it inexplicably took them five weeks thereafter to contact their counsel in Miami to look into the matter. Although counsel promptly acted upon being so contacted and immediately filed a motion to vacate the final declaratory decree herein, the pri-or five-week delay by the defendants was entirely inexcusable. See Bayview Tower Condominium Ass’n v. Schweizer, 475 So. 2d 982, 983 (Fla. 3d DCA 1985); Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329, 1330 (Fla. 4th DCA 1978); Cal-U-Sonic v. Metric Sys. Corp., 330 So. 2d 63, 64 (Fla. 1st DCA), cert. denied, 339 So. 2d 1167 (Fla.1976).
The order under review is, therefore, in all respects,
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
-
Morton L. Ginsberg & MLG Props., Inc. v. Lennar Fla. Holdings, 645 So. 2d 490 (Fla. 3d DCA 1994)…, 606 So. 2d 443 (Fla. 2d DCA 1992), review denied, 614 So. 2d 502 (Fla.1993); World’s Finest Inc. v. Carpenter, 564 So. 2d 626 (Fla. 4th DCA 1990); Techvend Inc. v. Phoenix Network Inc., 564 So. 2d 1145 (Fla. 3d DCA 1990); Fischer v. Barnett Banks, 511 So. 2d 1087 (Fla. 3d DCA 1987); Bayview Tower Condominium v. Schweizer, 475 So. 2d 982 (Fla. 3d DCA 1985); Lacore v. Giralda Bake Shop, 407 So. 2d 275 (Fla. 3d DCA 1981); B.C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981). A default judg…
-
Lazcar Int'l, Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007)…attorney ignored his duty to act with all due diligence” where “more than a month passed between the discovery of the default and the entry of the final judgment without any attempt to vacate the default”); Fischer v. Barnett Bank of S. Fla., N.A., 511 So. 2d 1087, 1088 (Fla. 3d DCA 1987)(finding a “five week delay by the defendants [in filing motion to vacate] entirely inexcusable”); Bayview Tower Condo. Ass’n v. Schweizer, 475 So. 2d 982, 983 (Fla. 3d DCA 1985)(finding a delay of one month “showed a lack of…
-
Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300 (Fla. 2d DCA 2004)…ceptable, as argued by Appellees. Thus, not only can Techvend not be read to set the upper limit of reasonable delay at six months, it stands for the proposition that a three-month delay is unreasonable and that, pursuant to Fischer v. Barnett Bank, 511 So. 2d 1087 (Fla. 3d DCA 1987), even a five-week delay may be considered unreasonable. Therefore, any reliance that the trial court placed on Appellees’ interpretation of Techvend as allowing a six-month delay was misplaced. Moreover, most of the recent cases…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Inv. Enters., Inc. v. The Ky. Co., Inc., 160 So. 2d 733 (Fla. 1st DCA 1964)
- Winter Park Arms, Inc. v. Akerman, 199 So. 2d 107 (Fla. 4th DCA 1967)
- State v. Camper, 356 So. 2d 1329 (Fla. 4th DCA 1978)
- Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978)
- Bayview Tower Condo. Ass'n, Inc. v. Schweizer, 475 So. 2d 982 (Fla. 3d DCA 1985)
- Somerville v. Skidmore, 175 So. 2d 575 (Fla. 3d DCA 1965)
- Cal-U-Sonic v. Metric Sys. Corp., 330 So. 2d 63 (Fla. 1st DCA 1976)