EDEN PARK MANAGEMENT, INC., A DELAWARE CORPORATION, AUTHORIZED TO DO BUSINESS AS MARTIN NURSING AND RESTORATIVE CARE CENTER, APPELLANT,
v.
CATHERINE ZAGORSKI AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF CATHERINE M. DORMAN, APPELLEE
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The trial court erred in vacating the dismissal of the nursing home action because the plaintiff failed to establish a factual basis for excusable neglect.
The trial court dismissed a nursing home action due to the plaintiff's counsel failing to attend a docket call. The attorney moved to vacate the dismi…
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MAY, J.
This is an appeal from an order granting a motion to vacate the dismissal of a nursing home action. The trial court dismissed the action due to plaintiffs counsel’s failure to attend a docket call/jury trial calendar as directed by the court. The attorney filed a motion to vacate the dismissal, pursuant to Fla. R. Civ. P. 1.540, and alleged that he was out of the office due to a severe illness when the order came in. The motion was filed within days of the dismissal. The trial court granted the motion.
The defendant argues that the trial court erred in vacating the dismissal because the plaintiff failed to demonstrate a factual basis to support the motion. We agree and reverse.
We start with the premise that in order to vacate the default judgment, it was incumbent upon appellee to establish both excusable neglect by her lawyer and a meritorious defense to appellant’s complaint.... The former must be es tablished by a sworn pleading which states a legal excuse for failure to comply with the rules of procedure or by testimony under oath in support of an unsworn motion.
Hall v. Byington, 421 So. 2d 817, 817 (Fla. 4th DCA 1982) (emphasis added, citation omitted).
In this case, neither the pleading was sworn nor was sworn testimony introduced to establish a factual basis for the alleged neglect. Absent such a basis, the trial court abused its discretion in vacating the dismissal. See Citibank v. PNC Mortgage Corp. of America, 718 So. 2d 300 (Fla. 2d DCA 1998). This does not preclude the trial court from accepting evidence to support the claim of excusable neglect upon remand.
The order is reversed and the case remanded to the trial court for proceedings consistent with this opinion.
POLEN, C.J., and GROSS J., concur.
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Jennifer Denise Halpern, M.D. v. Houser, 949 So. 2d 1155 (Fla. 4th DCA 2007)…eversed and remanded to the trial court to conduct an evidentiary hearing to determine whether the counterclaimants’ delay in moving to substitute was the result of excusable neglect. Id. at 615. Similarly, in Eden Park Management, Inc. v. Zagorski, 821 So. 2d 1263, 1264 (Fla. 4th DCA 2002), this Court concluded that the trial court abused its discretion in granting the plaintiffs rule 1.540(b) motion to vacate dismissal of action where the pleading and the testimony in support of the motion to vacate were not…
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KFC USA, Inc. v. Depew, 879 So. 2d 55 (Fla. 5th DCA 2004)…movant must demonstrate that the final judgment was the result of excusable neglect, that the movant exhibited due diligence in seeking to have the final judgment reopened, and that a meritorious defense exists.”); Eden Park Mgmt., Inc. v. Zagorski, 821 So. 2d 1263 (Fla. 4th DCA 2002); Armet S.N.C. di Ferronato Giovanni & Co. v. Hornsby, 744 So. 2d 1119 (Fla. 1st DCA 1999).…
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Rooney v. Wells Fargo Bank, N.A., 102 So. 3d 734 (Fla. 4th DCA 2012)…Puleo, 76 So. 3d 1037, 1039 (Fla. 4th DCA 2011). 1 In order to present a colorable claim of entitlement to vacate a final judgment, a litigant must provide sworn proof to support the allegations of the motion. See Eden Park Mgmt., Inc. v. Zagorski, 821 So. 2d 1263, 1264 (Fla. 4th DCA 2002). We do not think that discovery can commence on a motion for relief from judgment based upon unsworn allegations. To do so would encourage fishing expeditions in post-judgment proceedings. Here, the Rooneys made multiple al…
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
- Hall v. Eleanore Florence Byington & Rinker Materials Corp., 421 So. 2d 817 (Fla. 4th DCA 1982)
- Citibank, FSB v. PNC Mortg. Corp. OF Am. formerly Sears Mortg. Corp., 718 So. 2d 300 (Fla. 2d DCA 1998)