POLYGRAM LATINO U.S., A DIVISION OF POLYGRAM RECORDS, INC., A DELAWARE CORPORATION, APPELLANT,
v.
CRYSELL TORRES, INDIVIDUALLY, D/B/A V & C RECORDS, APPELLEE
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The court held that the trial court abused its discretion by setting aside a default judgment based on an unverified motion lacking evidence, especially when contrary evidence existed.
A default judgment was entered against the defendant. The defendant moved to set it aside, claiming non-receipt of filings due to an incorrect mailing…
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NESBITT, J.
On June 4, 1999, a Final Default Judgment was entered against the defendant. On July 14, 1999, the defendant filed an Emergency Motion to Set Aside Final Default Judgment, which the court subsequently granted. We reverse.
In her Emergency Motion to Set Aside Final Default Judgment, the defendant claimed that she never received copies of anything filed in the case after she filed her initial Motion to Dismiss. She attributed this to the fact that the plaintiff was sending copies of the filings in envelopes that contained an incorrect Puerto Rico mailing address. Defendant submitted no evidence in support of this bare bones, unverified assertion. In fact, all of the evidence before the court showed that the defendant did in fact receive copies of the filings in the case. This included both a prior admission by the defendant, as well as a sworn affidavit from a member of the United States Postal Service in Puerto Rico which indicated that the defendant would have received all of the filings even if the address on the envelopes contained the errors that the defendant complained of.1 Since the motion seeking relief consisted of merely unsworn to representations of counsel, unsupported by proof showing any excusable neglect, and the only evidence before the court actually refuted these representations, the lower court abused its discretion by granting the Motion to Set Aside Final Default Judgment. See Vanguard Group, Inc. v. Vanguard Security, Inc., 409 So. 2d 1219 (Fla. 3d DCA 1982); Yu v. Weaver, 364 So. 2d 539 (Fla. 4th DCA 1978); Callaghan v. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976).
Accordingly, we reverse the order granting Defendant’s Emergency Motion to Set Aside Final Default Judgment and remand with directions to reinstate the Final Default Judgment.
. This is because in spite of the mistake in address, the envelope contained enough correct information so as to assure successful delivery.
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Lazcar Int'l, Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007)…he waited another “couple of weeks,” until May 4, to complete and file the sworn motion. Unsworn argument of counsel is insufficient to satisfy the due diligence element of a motion to vacate a default final judgment. Polygram Latino U.S. v. Torres, 751 So. 2d 90 (Fla. 3d DCA 1999)(ruling that the trial court abused its discretion in granting defendant’s motion to vacate default judgment “[s]ince the motion seeking relief consisted of merely unsworn to representations of counsel, unsupported by proof showing…
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Global Xtreme, Inc. v. Advanced Aircraft Ctr., Inc., 122 So. 3d 487 (Fla. 3d DCA 2013)…fore the trial court. Facts are established by testimony, affidavits and stipulations.”); accord Craig v. Craig, 982 So. 2d 724 (Fla. 1st DCA 2008); Lazcar Int’l, Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007); Polygram Latino U.S. v. Torres, 751 So. 2d 90 (Fla. 3d DCA 1999). Because no record evidence establishes that Advanced complied with section 57.105(4), we find that the trial court abused its discretion in awarding fees pursuant to section 57.105. B. Section 713.29 Alternatively, Advanced arg…
Authorities Cited
- Callaghan v. Blanche D. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976)
- Vernal Amtri Turnquest v. State, 364 So. 2d 539 (Fla. 3d DCA 1978)
- The Vanguard Grp., Inc. v. Vanguard Sec., Inc., 409 So. 2d 1219 (Fla. 3d DCA 1982)
- Fed. Ins. Co. v. Itt Cmty. Dev. Corp., 409 So. 2d 1219 (Fla. 3d DCA 1982)