RON GARVIN, APPELLANT,
v.
SOUTH CAROLINA INSURANCE COMPANY, APPELLEE
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Ron Garvin appealed the trial court's denial of his motion for relief from a default judgment entered against him in a subrogation action by South Carolina Insurance Company. Although Garvin presented a meritorious defense through an affidavit from the project owner exonerating him, the court affirmed the denial because Garvin failed to exercise due diligence in challenging the default, waiting six months after learning of the judgment before filing his motion.
The trial court's denial of Garvin's motion for relief from judgment was proper. Although Garvin demonstrated a meritorious defense, he failed to satisfy the essential requirement of due diligence necessary to vacate a default judgment, as he waited six months from the time he learned of the judgment to file his motion for relief.
[1] A motion for relief from judgment based on excusable neglect must be filed within a reasonable time, even if within the one-year outer limit provided by rule.
[2] Due diligence is essential to vacate a default judgment.
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Join FLexlaw to unlock all legal intelligence“due diligence is essential to vacate a default judgment”
Establishes the fundamental requirement that parties seeking relief from default judgments must act with promptness and diligence
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Join FLexlaw to unlock all legal intelligenceRon Garvin was a subcontractor hired by Conda Construction Company to erect roof trusses and apply sheeting on a structure that collapsed on September…
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FRANK, Judge.
Ron Garvin was employed by Conda Construction Company as a subcontractor to erect roof trusses and apply the sheeting. During the evening of September 18, 1984, after completion of the day’s work, the partially finished structure collapsed. South Carolina Insurance Company satisfied Conda’s loss and was subrogated to the claim; it sued Garvin. Garvin was served with the complaint and summons on April 12, 1985. On May 22, 1985, because Garvin had failed to file an appropriate motion or responsive pleading, the clerk entered a default which ultimately ripened into a final judgment entered by the trial court on February 5, 1986. Garvin did not learn of the final judgment until April of 1986, when he was served with a subpoena issued in aid of execution.
Several months later, on September 4, 1986, Garvin’s attorney filed a motion, verified by Garvin, for relief from judgment accompanied by an affidavit executed by George Conda. Conda’s affidavit exonerates Garvin from responsibility for the wall’s collapse and attributes the defect to a source other than Garvin — an obvious meritorious defense. In his verified motion, Garvin asserts that he spoke on several occasions with his insurance broker, Ro-que, concerning the litigation and was assured it was being taken care of by Aetna Insurance Company. Aetna, however, denied coverage based upon Garvin’s failure to comply with the policy’s notice provision.
The trial court denied the motion for relief from judgment, leaving Garvin indebted in the amount of $12,970.92 plus interest and costs. Garvin appeals from the trial court’s order, contending that the default falls within the scope of excusable neglect arising from the failure of his insurance broker, Roque, to notify Aetna of the pending litigation. See Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984).
We affirm the trial court.
Notwithstanding that the timing of an attack upon a default judgment has been characterized as a factor that “may” be considered in conjunction with the elements of excusable neglect and a meritorious defense, Gibraltar Service Corporation v. Lone And Associates, Inc., 488 So. 2d 582, 584 (Fla. 4th DCA 1986), we have consistently held that due diligence is essential to vacate a default judgment. See, e.g., Westinghouse Elevator Co. v. DFS Construction Co., 438 So. 2d 125, 126 (Fla. 2d DCA 1983).
Although Rule 1.540(b) of the Florida Rules of Civil Procedure provides an outside limit of one year in which to file a motion for relief from judgment grounded upon excusable neglect, the rule contemplates a shorter period measured by a standard of reasonableness. Cf. Fischer v. Barnett Bank of South Florida, 511 So. 2d 1087 (Fla. 3d DCA 1987) (five week delay in communicating with counsel not due diligence); see Ranger Construction Industries, Inc. v. Huff, 499 So. 2d 2 (Fla. 4th DCA 1986) (lapse of slightly less than one year from service to filing of motion to vacate default; no due diligence shown).
We have been quick to note the extraordinary circumstance disclosing the apparent absence of liability in Garvin. Had Garvin exercised “due diligence” in reacting to the judgment once it was known to him, we would not be reluctant to reverse the trial court; indeed, there likely would not have been an adverse order.
The trial court, however, did not abuse its discretion in the face of a six month span from the moment Garvin knew of the default judgment to the moment when he sought its vacation. Unfortunately, Garvin’s counsel has neither here nor apparently before the trial court attempted to explain, let alone justify, the duration of inaction. On this record we find no abuse of discretion in the trial court’s order denying Garvin’s motion.
Affirmed.
DANAHY, C.J., and RYDER, J., concur.
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Techvend, Inc. v. The Phoenix Network, Inc., 564 So. 2d 1145 (Fla. 3d DCA 1990)…ult. Fischer v. Barnett Bank of South Florida, N.A., 511 So. 2d 1087 (Fla. 3d DCA 1987) (five weeks); Bayview Tower Condominium Ass’n, Inc. v. Schweizer, 475 So. 2d 982, 983 (Fla. 3d DCA 1985) (one month); see also Garvin v. South Carolina Ins. Co., 528 So. 2d 929 (Fla. 2d DCA 1988) (six months). While the theoretical underpinning of the due diligence requirement has perhaps not so far been fully explicated, it would appear that the requirement that one move expeditiously to nullify a default is directly re…
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Bacon Fam. P'rs, L.P. v. Apollo Condo. Ass'n, Inc., 852 So. 2d 882 (Fla. 2d DCA 2003)…fter the filing of its notice dismissing the Counterclaim. Rule 1.540(b) provides an outside limit of one year within which to file a motion for relief grounded upon mistake, inadvertence, surprise, or excusable neglect. See Garvin v. S.C. Ins. Co., 528 So. 2d 929, 930 (Fla. 2d DCA 1988); Freeman v. Sanders, 562 So. 2d 834, 836 (Fla. 1st DCA 1990). Although relief from clerical mistakes may be sought "at any time” pursuant to rule 1.540(a), such relief is limited to errors committed by the court or the clerk.…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Westinghouse Elevator Co. v. DFS Constr. Co. & Fed. Ins. Co., 438 So. 2d 125 (Fla. 2d DCA 1983)
- Gibraltar Serv. Corp. v. Lone & Assocs., Inc., 488 So. 2d 582 (Fla. 4th DCA 1986)
- Hubert Fischer & Angeles de Fischer v. Barnett Bank OF S. Fla., N.A., 511 So. 2d 1087 (Fla. 3d DCA 1987)
- S. Trail Fire Control Dist. & Nationwide Ins. Co. v. Johnson, 449 So. 2d 947 (Fla. 1st DCA 1984)
- Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984)
- Ranger Constr. Indus., Inc. v. Huff, 499 So. 2d 2 (Fla. 4th DCA 1986)