Opinion
6D23-385
08-25-2023
Stephanie Smith, as Trustee for the Lovely Family Trust, dated March 29, 2013, Appellant/Cross-Appellee, v. Kathy J. Healy, Appellee/Cross-Appellant.
David P. Reiner, II, of Reiner & Reiner, P.A., Miami, for Appellant/Cross-Appellee. Manuel Farach and Michael W. Kranz, of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., West Palm Beach, for Appellee/Cross-Appellant.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Collier County. Lower Tribunal No. 2019-CA-002162 Hugh D. Hayes, Judge.
David P. Reiner, II, of Reiner & Reiner, P.A., Miami, for Appellant/Cross-Appellee.
Manuel Farach and Michael W. Kranz, of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., West Palm Beach, for Appellee/Cross-Appellant.
PER CURIAM.
Stephanie Smith, as trustee for the Lovely Family Living Trust dated March 29, 2013, ("Smith") appeals an order denying her motion to vacate a default final judgment entered in favor of Kathy J. Healy. Healy cross-appeals an order of recusal entered by Judge Hugh D. Hayes after the denial of Smith's motion.
This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.
The underlying action is a dispute involving two neighbors, each with property bordering the same canal with access to the Gordon River and Naples Bay. Healy owns property located at 1350 Curlew Avenue, Naples, Florida ("Healy Property"). Smith owns property located at 1300 Curlew Avenue, Naples, Florida ("Smith Property"). Smith primarily resides in Pacific Palisades, California; however, her family regularly visits Naples, Florida.
In December 2017, Smith began a series of improvements at the Smith Property, including filling an existing basin and rebuilding her driveway. In February 2019, Smith obtained a permit to remove the old residence at the Smith Property and replace it with a new one. Healy claimed that the proposed construction violated her common law riparian rights and filed a complaint seeking declaratory and injunctive relief against Smith to prevent further construction.
After several failed attempts to serve Smith personally, Healy resorted to constructive service under section 49.011, Florida Statutes (2019). The clerk issued a notice of action, requiring Smith to serve written defenses. When no defenses were filed, a default was entered. The trial court then entered a default final judgment with a permanent injunction.
Forty-five days after entry of the default judgment, Smith filed a motion to vacate the default and judgment under Florida Rule of Civil Procedure 1.540, alleging that her failure to serve a response to the complaint resulted from excusable neglect. She also filed several sworn declarations as factual support for her motion. The trial court denied her motion, and Smith appeals.
Smith argues that the trial court erred by denying her motion to vacate the default judgment. We agree. "An order denying a motion to vacate a final judgment is reviewed for an abuse of discretion." BoatFloat, LLC v. Central Transp. Intern., Inc., 941 So.2d 1271, 1272 (Fla. 4th DCA 2006). "A court has discretion to set aside a default judgment if the moving party demonstrates: (1) excusable neglect in failing timely to file a response; (2) a meritorious defense; and (3) due diligence in requesting relief after discovery of the default." Santiago v. Mauna Loa Invs., LLC, 189 So.3d 752, 758 (Fla. 2016). "Failure to satisfy any of the three elements results in denial of the motion to vacate." Id. On the other hand, "[t]here is a strong preference for lawsuits to be determined on the merits and that courts should liberally set aside defaults under appropriate circumstances." Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004); see also Bank of America, N.A. v. Lane, 76 So.3d 1007, 1008 (Fla. 1st DCA 2011) ("The longstanding policy in Florida is one of liberality toward vacating defaults, and any reasonable doubt with regard to setting aside a default should be resolved in favor of vacating the default and allowing trial on the merits.") (quoting Allstate Ins. Co. v. Ladner, 740 So.2d 42, 43 (Fla. 1st DCA 1999)).
Here, Smith established all the requirements to set aside a default judgment. The unrefuted sworn statements submitted with her motion clearly establish that Smith did not learn of the lawsuit until after judgment was entered, at which time she immediately sought legal counsel. Her sworn statements also show meritorious defenses, one of which being potential infirmities with constructive service. See Cooper v. Gibson, 208 So.2d 117, 119 (Fla. 4th DCA 1968) (holding that an injunction against the person requires in personam jurisdiction "and cannot be maintained against a nonresident upon constructive service."). As for the requirement that she exercise diligence in bringing her motion within a reasonable time, an eighteen-day delay spent seeking counsel is not an unreasonable amount of time. See Florida Eurocars, Inc. v. Pecorak, 110 So.3d 513, 516 (Fla. 4th DCA 2013) (One justifiable reason for delay is "trying to obtain counsel....").
We conclude that the trial court abused its discretion in denying Smith's motion to vacate; therefore, we reverse the trial court's order and remand with directions to enter an order vacating the default final judgment and default.
Because the final judgment will be vacated, the cross-appeal is dismissed as moot.
REVERSED and REMANDED.
NARDELLA and SMITH, JJ., ORFINGER, R.B., Associate Senior Judge, concur.