existence of a meritorious defense in Florida

2025If reasonable [people] could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”) (modernized) (citation omitted); see also E.S. v. Dep’t of Children and Family, 878 So. 2d 493, 496 (Fla. 3d DCA 2 2004) (requiring, in the context of a motion to vacate a default entered upon a constructive consent to termination of parental rights, that “the party seeking to vacate the default act with due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense to the termination petition.

2017A motion to set aside a final judgment of termination of parental rights must establish “due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense to the termination petition.” Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 236 (Fla. 2009), citing to In re A.N.D. 883 So.2d 910, 914 (Fla. 2d DCA 2004) and E.S. v. Dep’t of Children & Family Servs., 878 So.2d 493, 496 (Fla. 3d DCA 2004).

2025Geer v. Jacobsen, 880 So. 2d 717, 721 (Fla. 2d DCA 2004) (A meritorious defense "must be asserted either by a pleading or in an affidavit, and a general denial is insufficient to demonstrate the existence of a meritorious defense.").

2012See Lazcar Int'l Inc. v. Caraballo, 957 So.2d 1191, 1192 (Fla. 3d DCA 2007) (“For a trial court to grant a motion to set aside a default final judgment, the moving party must show three things: (1) the failure to file a responsive pleading was the result of excusable neglect; (2) the moving party has a meritorious defense; and (3) the moving party acted with due diligence in seeking relief from the default.”), review denied, 969 So.2d 1011 (Fla.2007); Geer v. Jacobsen, 880 So.2d 717, 721 (Fla. 2d DCA 2004) (A meritorious defense “must be asserted either by a pleading or in an affidavit, and a

2020Const. Corp., 954 So. 2d 1250, 1252 (Fla. 4th DCA 2007) (reversing and remanding to reinstate the default final judgment, finding no competent substantial evidence in the record of some exceptional circumstances explaining the delay); Lazcar Int’l, 957 So. 2d at 1193 (finding no competent evidence of any circumstance, exceptional or not, explaining the delay); Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329, 1330 (Fla. 4th DCA 1978) (explaining “swift action must be taken upon first receiving knowledge of any default”). 3) Meritorious defense A meritorious defense must

2013P. 1.540(b) (2011); see also Lazcar Int’l, Inc. v. Caraballo, 957 So.2d 1191, 1192 (Fla. 3d DCA 2007) (noting that a movant has to show: 1) that the failure to respond was the result of excusable neglect; 2) the existence of a meritorious defense; and 3) that the movant acted with due diligence in seeking relief).

2017A motion to set aside a final judgment of termination of parental rights must establish “due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense to the termination petition.” Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 236 (Fla. 2009), citing to In re A.N.D. 883 So.2d 910, 914 (Fla. 2d DCA 2004) and E.S. v. Dep’t of Children & Family Servs., 878 So.2d 493, 496 (Fla. 3d DCA 2004).

2009Under that test, “the party seeking to vacate the default [must] act with due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense to the termination petition.” E.S., 878 So.2d at 496 ; see In re A.N.D., 883 So.2d 910 , 914 n. 3 (Fla. 2d DCA 2004) (“At a minimum, a ‘meritorious defense’ should include any meritorious arguments regarding the grounds for termination, the manifest best interests of the child, and the least restrictive means for protecting the child.”).

1980Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So.2d 733, 735 (Fla. 1st DCA 1964).

1977Compare Florida Investment Enterprises, Inc. v. Kentucky Company, 160 So.2d 733 (Fla. 1 DCA 1964); North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962).

2017A motion to set aside a final judgment of termination of parental rights must establish “due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense to the termination petition.” Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 236 (Fla. 2009), citing to In re A.N.D. 883 So.2d 910, 914 (Fla. 2d DCA 2004) and E.S. v. Dep’t of Children & Family Servs., 878 So.2d 493, 496 (Fla. 3d DCA 2004).

2016To set aside the default, the parent must “act with due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense to the termination petition.” Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228 , 236 (Fla.2009) (quoting E.S. v. Dep’t of Children & Family Servs., 878 So.2d 493, 496 (Fla. 3d DCA 2004)).

2004See id. at 988 ; see also Markowski v. Attel Bank Int’l, 701 So.2d 416, 418 (Fla. 3d DCA 1997).

2004Thus, the party seeking to vacate the consent must act with due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense. 3 Id. (citing R.H. v. Dep’t of Children & Family Servs., 860 So.2d 986 (Fla. 3d DCA 2003)); see also S.C. v. Dep’t of Children & Families, 877 So.2d 831 (Fla. 4th DCA 2004). 4 The moving party carries the burden of persuasion.

2020Schauer v. Coleman, 639 So. 2d 637, 639 (Fla. 2d DCA 1994); Hill v. Murphy, 872 So. 2d 919, 921 (Fla. 2d DCA 2003) (holding a conclusory assertion that a meritorious defense exists is insufficient).

2004Schauer v. Coleman, 639 So.2d 637, 639 (Fla. 2d DCA 1994); see also Collins, 519 So.2d at 730 .

2009Motions to vacate such defaults are liberally granted and “courts should ... refrain from determining a termination of parental rights by default when an absent parent makes a reasonable effort to be present at a hearing but is prevented or delayed by circumstances beyond the parent’s control.” A.N.D, 883 So.2d at 914 ; see also E.A. v. Dep’t of Children & Families, 894 So.2d 1049, 1051 (Fla. 5th DCA 2005) (“The purpose of this rule ... is not to terminate parental rights on a ‘gotcha’ basis”).

2009Motions to vacate such defaults are liberally granted and "courts should ... refrain from determining a termination of parental rights by default when an absent parent makes a reasonable effort to be present at a hearing but is prevented or delayed by circumstances beyond the parent's control." A.N.D, 883 So.2d at 914 ; see also E.A. v. Dep't of Children & Families, 894 So.2d 1049 , 1051 *237 (Fla. 5th DCA 2005) ("The purpose of this rule ... is not to terminate parental rights on a `gotcha' basis.").

2004See id. at 988 ; see also Markowski v. Attel Bank Int’l, 701 So.2d 416, 418 (Fla. 3d DCA 1997).

2004See id. at 988 ; see also Markowski v. Attel Bank Int'l, 701 So.2d 416, 418 (Fla. 3d DCA 1997).

1981Winter Park Arms, Inc. v. Akerman, 199 So.2d 107 (Fla. 4th DCA 1967).

1980We think the correct rule, and one that does not do violence to the liberal policy enunciated by the case law, is succinctly stated by the court in Winter Park Arms, Inc. v. Akerman, 199 So.2d 107, 108 (Fla. 4th DCA 1967): The general rule in cases such as this is that the relief may be granted within the sound discretion of the trial court upon a showing of the existence of a meritorious defense and a legal excuse for failure to comply with the rules.

2004Although the standard of review of an order ruling on a motion to vacate a default judgment is whether there has been an abuse of the trial court's discretion, [1] this court must remain cognizant of Florida's "long standing policy of liberality toward the vacating of defaults" when a defendant has demonstrated excusable neglect and has presented a meritorious defense. [2] North Shore Hosp. v. Barber, 143 So.2d 849, 852 (Fla.1962); see also Travelers Ins.

1977Compare Florida Investment Enterprises, Inc. v. Kentucky Company, 160 So.2d 733 (Fla. 1 DCA 1964); North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962).

2004Cabs, Inc., 344 So.2d 914 (Fla. 3d DCA 1977) (the existence of a meritorious defense can be demonstrated by a sworn motion to set aside a default, as well as by a defensive pleading).

1986Second, the defendant established a meritorious defense below by the proposed answer attached to its motion to vacate, which answer sets out in detail a number of affirmative defenses, Pedro Realty Inc. v. Silva, 399 So.2d 367, 369 (Fla. 3d DCA 1981) ("A defendant may not merely state that it has a meritorious defense, but must disclose such a defense in a defensive pleading or affidavit"); Perry v. University Cabs, Inc., 344 So.2d 914, 915 (Fla. 3d DCA 1977) ("The existence of a meritorious defense should be disclosed in tendering a defensive pleading showing the defense... .").

1986Second, the defendant established a meritorious defense below by the proposed answer attached to its motion to vacate, which answer sets out in detail a number of affirmative defenses, Pedro Realty Inc. v. Silva, 399 So.2d 367, 369 (Fla. 3d DCA 1981) ("A defendant may not merely state that it has a meritorious defense, but must disclose such a defense in a defensive pleading or affidavit"); Perry v. University Cabs, Inc., 344 So.2d 914, 915 (Fla. 3d DCA 1977) ("The existence of a meritorious defense should be disclosed in tendering a defensive pleading showing the defense... .").

1982Pedro Realty, Inc. v. Silva, 399 So.2d 367 (Fla. 3d DCA 1981).

2026Finally, we review due diligence, “which is a test of reasonableness, [and] must be evaluated based on the facts of the particular case.” Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304, 308 (Fla. 4th DCA 2010) (citing Franklin v. Franklin, 573 So. 2d 401, 403 (Fla. 3d DCA 1991)).

2026Finally, we review due diligence, “which is a test of reasonableness, [and] must be evaluated based on the facts of the particular case.” Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304, 308 (Fla. 4th DCA 2010) (citing Franklin v. Franklin, 573 So. 2d 401, 403 (Fla. 3d DCA 1991)).

2020Const. Corp., 954 So. 2d 1250, 1252 (Fla. 4th DCA 2007) (reversing and remanding to reinstate the default final judgment, finding no competent substantial evidence in the record of some exceptional circumstances explaining the delay); Lazcar Int’l, 957 So. 2d at 1193 (finding no competent evidence of any circumstance, exceptional or not, explaining the delay); Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329, 1330 (Fla. 4th DCA 1978) (explaining “swift action must be taken upon first receiving knowledge of any default”). 3) Meritorious defense A meritorious defense must

2020Const. Corp., 954 So. 2d 1250, 1252 (Fla. 4th DCA 2007) (reversing and remanding to reinstate the default final judgment, finding no competent substantial evidence in the record of some exceptional circumstances explaining the delay); Lazcar Int’l, 957 So. 2d at 1193 (finding no competent evidence of any circumstance, exceptional or not, explaining the delay); Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329, 1330 (Fla. 4th DCA 1978) (explaining “swift action must be taken upon first receiving knowledge of any default”). 3) Meritorious defense A meritorious defense must

2020Schauer v. Coleman, 639 So. 2d 637, 639 (Fla. 2d DCA 1994); Hill v. Murphy, 872 So. 2d 919, 921 (Fla. 2d DCA 2003) (holding a conclusory assertion that a meritorious defense exists is insufficient).

2009See Bethesda Mem’l Hosp., Inc. v. Laska, 977 So.2d 804 , 805 n. 1 (Fla. 4th DCA 2008) (finding that a motion to vacate a default accompanied by an affidavit sufficiently established the existence of a meritorious defense).

2008We agree that the motion papers sufficiently asserted the existence of a meritorious defense. [2] Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) ("discretion is abused only where no reasonable man would take the view adopted by the trial court").

2004Schauer v. Coleman, 639 So.2d 637, 639 (Fla. 2d DCA 1994); see also Collins, 519 So.2d at 730 .

2004Thus, the party seeking to vacate the consent must act with due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense. 3 Id. (citing R.H. v. Dep’t of Children & Family Servs., 860 So.2d 986 (Fla. 3d DCA 2003)); see also S.C. v. Dep’t of Children & Families, 877 So.2d 831 (Fla. 4th DCA 2004). 4 The moving party carries the burden of persuasion.

2002See id.

2002See International Energy Corp. v. Hackett, 687 So.2d 941 (Fla. 3rd DCA 1997); Gulf Maintenance, supra, at 817 ; Yellow Jacket Marina, Inc. v. Paletti, 670 So.2d 170 (Fla. 1st DCA 1996); Powers v. Gentile, 662 So.2d 374 (Fla. 5th DCA 1995). *697 Because the trial court committed error in failing to set aside the void default, we reverse.