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In General Computer Services v. AP SC River Oaks, LLC, 39 Fla. L. Weekly D33a (Fla. 3d DCA December 26, 2013), the 3d DCA affirmed the trial court's order denying the defendant's motion to vacate default and default final judgment as well as motion for relief from final judgment.

Pursuant to Fla. R. Civ. P. 1.500(b), a court may relieve a party from an entry of default judgment for a mistake, inadvertence, surprise or excusable neglect. To set aside a default judgment under the rule, a court must determine (1) whether a defendant has demonstrated excusable neglect in failing to respond; (2) when the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, has demonstrated due diligence in seeking relief. Schwartz v. Business Cards Tomorrow, 644 So. 2d 611 (Fla. 4th DCA 1994).

The 3d DCA found that the default entered by the clerk was not void as GCS had received actual notice of the motion for default two weeks prior to entry of the default. Further, GCS had failed to demonstrate excusable neglect or due diligence.

The appellate court also found that the trial court properly denied defendant's motion for relief from judgment under Fla. R. Civ. P. 1.540. GCS raised grounds for relief that repeated those served in the motion to set aside default or which with due diligence could have been asserted in the first motion.

 

 

This summary was prepared by Richard Womble of our firm.


Richard Womble

 

 


39 Fla. L. Weekly D33a

 

Civil procedure -- Default -- Trial court did not err in denying motion to vacate default and default final judgment -- Default entered by clerk was not void -- Trial court properly found that defendant failed to demonstrate excusable neglect or due diligence -- Trial court did not abuse discretion in denying successive motion for relief from final judgment -- Trial court properly found that principles of res judicata bar successive motions for relief from judgment where the grounds for relief were repetitive of those asserted in the first motion or with due diligence could have been asserted in the first motion

GENERAL COMPUTER SERVICES, INC., Appellant, vs. AP SC RIVER OAKS LLC, etc., Appellee. 3rd District. Case Nos. 3D12-1186, 3D11-2355. L.T. Case No. 09-61071. Opinion filed December 26, 2013. Appeals from the Circuit Court for Miami-Dade County, Diane V. Ward and Barbara Areces, Judges. Counsel: Arthur J. Morburger, for appellant. Greenberg Traurig, P.A. and Julissa Rodriguez, Ronald M. Rosengarten and Jay A. Yagoda, for appellee.

(Before WELLS, ROTHENBERG and EMAS, JJ.)

(EMAS, Judge.) Appellant General Computer Services, Inc. ("GCS") appeals the trial court's orders denying its motion to vacate a default and default final judgment, as well as an order denying GCS's successive motion for relief from the final judgment and from a post-default order.

We conclude that upon the record in this case, and contrary to the arguments made by GCS, the default entered by the clerk was not void, see Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305 (Fla. 3d DCA 1987), and in fact GCS received actual notice of the motion for default two weeks prior to entry of the default. We further conclude that the trial court did not abuse its discretion in determining that GCS failed to demonstrate excusable neglect or due diligence and in seeking relief under Florida Rule of Civil Procedure 1.540, and that principles of res judicata bar successive motions for relief from judgment where the grounds for relief "were repetitive of those asserted in the first motion, or which with due diligence could have been asserted in the first motion." See Veloso v. Trustcorp Capital Leasing, 791 So. 2d 1138, 1138 (Fla. 3d DCA 2001) (citing Perkins v. Salem, 249 So. 2d 466 (Fla. 1st DCA 1971)).

Affirmed.









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