76 So. 3d 1007
Fla. Dist. Ct. App.2011Background
- Appellant seeks review of trial court’s order setting aside a default judgment against appellees for excusable neglect.
- Complaint for breach of contract, open account, and unjust enrichment was served on appellees who reside in Florida.
- Default entered after appellees failed to plead; default judgment issued; three months later appellees movetovacate as void arguing forum clause deprived jurisdiction.
- Trial court held forum selection clause did not deprive jurisdiction; on rehearing, it sua sponte found excusable neglect warranted vacating the default and reinstating the case.
- Appellant argues the court lacked proper grounds and procedural posture to vacate for excusable neglect; issues include lack of evidentiary showings and improper ruling.
- Court reverses and remands to allow appellees to file an amended Rule 1.540(b) motion with evidence of excusable neglect, meritorious defense, and due diligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether excusable neglect can support vacating the default | Appellant: appellees did not plead or litigate excusable neglect; no proper evidentiary showing. | Appellees: trial court could vacate on excusable neglect on its own motion and based on evidence. | Reversed; cannot base on excusable neglect without proper pleading and evidence; remanded. |
| Whether the forum selection clause deprived subject matter jurisdiction | Appellant: clause may deprive jurisdiction; needs review. | Appellees: clause did not deprive jurisdiction; contract permitted forum otherwise by law. | Clause did not deprive jurisdiction; proper analysis affirmed. |
| Whether personal jurisdiction was properly raised or waived | Appellant: not at issue; service occurred in Florida; jurisdiction issue must be raised timely. | Appellees waived by participating without objection; lack of timely challenge. | Waived; appellees cannot contest jurisdiction on remand. |
Key Cases Cited
- Allstate Ins. Co. v. Ladner, 740 So.2d 42 (Fla. 1st DCA 1999) (liberality toward vacating defaults; resolve doubt in favor of vacating)
- Neumann v. Neumann, 857 So.2d 372 (Fla. 1st DCA 2003) (order adjudicating issues not presented denies due process)
- Purcell v. Deli Man, Inc., 411 So.2d 378 (Fla. 4th DCA 1982) (second Rule 1.540(b) motion barred by res judicata)
- Manrique v. Fabbri, 493 So.2d 487 (Fla. 1986) (forum selection clause consideration in jurisdictional analysis)
- Taurus Stornoway Invs., LLC v. Kerley, 38 So.3d 840 (Fla. 1st DCA 2010) (forum clause effectiveness in Florida decisions)
- Copeleo Leasing Corp. v. Best Photo Shop, Inc., 678 So.2d 17 (Fla. 4th DCA 1996) (forum clause does not automatically void jurisdiction)
- Pruitt v. Brock, 437 So.2d 768 (Fla. 1st DCA 1983) (grounds for relief from default under Rule 1.540)
- Bortz v. Bortz, 675 So.2d 622 (Fla. 1st DCA 1996) (abuse of discretion standard for relief from judgments)