Peter J. Bowers and Peter J. Bowers, P.A. v. Adrien Allez, Edward Cherry, Charles Andrews, Marcus Ricker
165 So. 3d 710
| Fla. Dist. Ct. App. | 2015Background
- Fourth District Court of Appeal of Florida affirmed denial of motion to set aside judicial default and vacate default judgment against appellants Bowers and Bowers, P.A., in favor of appellee Adrien Allez.
- Allez filed a complaint alleging fraudulent misrepresentation, aiding and abetting fraud, conversion, and aiding and abetting conversion related to a real property investment with $400,000 to defendants.
- Appellants sought extension to respond, citing ongoing personal and family medical issues; later filed a correction claiming a specified response date of November 12, 2013.
- Default was entered after failure to respond; a default final judgment followed; appellants then moved to set aside the default and vacate the judgment claiming excusable neglect.
- Trial court denied the motion; standard of review is abuse of discretion; Florida law requires excusable neglect, meritorious defense, and due diligence to set aside a default or judgment.
- Court held appellants failed to show excusable neglect, noting timely extension requests were made but not followed by responsive filing or a new extension; no hospitalization evidence; actions favored prioritizing other clients.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the denial of the motion to set aside default was an abuse of discretion. | Bowers's medical issues and family emergencies constitute excusable neglect. | Extensions granted were not followed by timely response; neglect not excusable; other client priorities do not justify inaction. | No abuse of discretion; excusable neglect not shown. |
Key Cases Cited
- Halpern v. Houser, 949 So. 2d 1155 (Fla. 4th DCA 2007) (establishes three elements for setting aside default: excusable neglect, meritorious defense, due diligence)
- Lehner v. Durso, 816 So.2d 1171 (Fla. 4th DCA 2002) (failure to satisfy any element requires denial)
- Elliott v. Aurora Loan Servs., LLC, 31 So.3d 304 (Fla. 4th DCA 2010) (excusable neglect includes illness or psychological condition impairing action)
- Somero v. Hendry Gen. Hosp., 467 So.2d 1103 (Fla. 4th DCA 1985) (illness as grounds for excusable neglect recognized)
- Paul v. Wells Fargo Bank, N.A., 68 So.3d 979 (Fla. 2d DCA 2011) (illness or psychological condition can be valid ground for excusable neglect)