DiSarrio v. Mills, 711 So. 2d 1355 (Fla. 2d DCA 1998). · Go Syfert
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DiSarrio v. Mills, 711 So. 2d 1355 (Fla. 2d DCA 1998). Cases Citing This Book View Copy Cite
“excusable neglect must be proven by sworn statements or affidavits”
25 citation events (21 in the last 25 years) across 1 distinct court.
Strongest positive: STATE OF FLORIDA v. WILLIAM CRUMBLEY (fladistctapp, 2018-05-23)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 20 distinct citers.
discussed Cited as authority (verbatim quote) STATE OF FLORIDA v. WILLIAM CRUMBLEY
Fla. Dist. Ct. App. · 2018 · quote attribution · 1 verbatim quote · confidence high
argument by counsel who is not under oath is not evidence.
discussed Cited as authority (verbatim quote) State v. Jones
Fla. Dist. Ct. App. · 2010 · quote attribution · 1 verbatim quote · confidence high
argument by counsel who is not under oath is not evidence.
discussed Cited as authority (verbatim quote) FLORIDA HIGH SCHOOL, ACTIVITIES, INC. v. Latimer
Fla. Dist. Ct. App. · 2000 · quote attribution · 1 verbatim quote · confidence high
excusable neglect must be proven by sworn statements or affidavits
discussed Cited as authority (rule) Nguyen, Nguyen v. Williams
Fla. Dist. Ct. App. · 2026 · confidence medium
Funding Corp. v. Technamax, Inc., 946 So. 2d 63, 65 (Fla. 2d DCA 2006) ("The element of 7 excusable neglect must be proven by a sworn statement or affidavit." (citing DiSarrio v. Mills, 711 So. 2d 1355, 1356 (Fla. 2d DCA 1998))); Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 2d DCA 2004) ("Excusable neglect must be proven by sworn statements or affidavits.
cited Cited as authority (rule) QUEST DIAGNOSTICS, INC. v. CHERI HAYNIE
Fla. Dist. Ct. App. · 2021 · confidence medium
“Excusable neglect must be proven by sworn statements or affidavits.” Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 2d DCA 2004) (quoting DiSarrio v. Mills, 711 So. 2d 1355, 1356 (Fla. 2d DCA 1998)).
discussed Cited as authority (rule) Collins Asset Group, LLC v. Lee (2×)
Fla. Dist. Ct. App. · 2016 · confidence medium
Unsworn assertions of excusable neglect are insufficient.” Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004) (quoting DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998)).
discussed Cited as authority (rule) SVI Capital, LLC v. Bank of America, etc., Anthony Turner and Susan Turner
Fla. Dist. Ct. App. · 2015 · confidence medium
Counsel for Bank of America stated at the hearing that there was a settlement agreement; however, "[a]rgument by counsel who is not under oath is not evidence.” DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998).
discussed Cited as authority (rule) America's Yate De Costa Rica v. Armco Manufacturing, Inc.
Fla. Dist. Ct. App. · 2011 · confidence medium
“Excusable neglect requires a showing of both a legal excuse for failing to comply with the Florida Rules of Civil Procedure and a meritorious defense.” DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998).
discussed Cited as authority (rule) Aziz v. Aziz
Fla. Dist. Ct. App. · 2010 · confidence medium
In the event of another temporary hearing on remand, the parties should bear in mind that “unsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation.” Daughtrey v. Daughtrey, 944 So.2d 1145, 1148 (Fla. 2d DCA 2006) (citing DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998)).
discussed Cited as authority (rule) Elliott v. AURORA LOAN SERVICES, LLC
Fla. Dist. Ct. App. · 2010 · confidence medium
Id. at 24 . “ ‘Excusable neglect must be proven by sworn statements or affidavits.’ ” Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004) (quoting DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998)).
cited Cited as authority (rule) United Capital Funding Corp. v. Technamax, Inc.
Fla. Dist. Ct. App. · 2006 · confidence medium
DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998); Schauer v. Coleman, 639 So.2d 637, 638-39 (Fla. 2d DCA 1994).
discussed Cited as authority (rule) Geer v. Jacobsen
Fla. Dist. Ct. App. · 2004 · confidence medium
Unsworn assertions of excusable neglect are insufficient." DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998) (citations omitted); see also Collins v. Collins, 519 So.2d 729, 730 (Fla. 2d DCA 1988).
cited Cited as authority (rule) Ordonez v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
See State v. Thompson, 852 So.2d 877, 878 (Fla. 2d DCA 2003) (noting that the argument of counsel is not evidence); DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998) (same).
cited Cited as authority (rule) State v. Thompson
Fla. Dist. Ct. App. · 2003 · confidence medium
DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998).
cited Cited as authority (rule) Steinhardt v. Intercondominium Group, Inc.
Fla. Dist. Ct. App. · 2000 · confidence medium
Id. at 1356-57 (citations omitted).
cited Cited "see" Patel v. U.S. Bank National Association
Fla. Dist. Ct. App. · 2014 · signal: see · confidence high
See DiSarrio v. Mills, 711 So.2d 1355 (Fla. 2d DCA 1998).
discussed Cited "see" Mulligan v. State Farm Florida Insurance Co.
Fla. Dist. Ct. App. · 2013 · signal: see · confidence high
See DiSarrio v. Mills, 711 So.2d 1355, 1356-57 (Fla. 2d DCA 1998) (failure of attorney to attest, in sworn motion or testimony, to scheduling conflict resulted in insufficient evidence of excusable neglect).
cited Cited "see" Rowe v. Rodriguez-Schmidt
Fla. Dist. Ct. App. · 2012 · signal: see · confidence high
See DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998).
cited Cited "see" BON SECOURS-MARIA MANOR v. Seaman
Fla. Dist. Ct. App. · 2007 · signal: see · confidence high
See DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998); State v. T.A., 528 So.2d 974, 975 (Fla. 2d DCA 1988).
cited Cited "see" Daughtrey v. Daughtrey
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998); State v. T.A., 528 So.2d 974, 975 (Fla. 2d DCA 1988).
Anthony J. DiSARRIO, Individually and d/b/a Great Life Builders, Appellant,
v.
Richard MILLS and Glenda Mills, Appellees.
97-03665.
District Court of Appeal of Florida, Second District.
Jun 17, 1998.
711 So. 2d 1355
Quince.
Cited by 21 opinions  |  Published

[*1356] Michael A. Baviello, Jr. of Michael A. Baviello, Jr., P.A., Naples, for Appellant.

Gary J. Hausler, Marco Island, for Appellees.

QUINCE, Judge.

Anthony J. Disarrio challenges the trial court's determination that the failure of Richard and Glenda Mills' (the Mills) attorney to appear at a scheduled pretrial conference was excusable neglect under Florida Rule of Civil Procedure 1.540(b). We reverse because excusable neglect is not supported by evidence.

The Mills filed suit in June 1996 against Disarrio and Great Life Builders for breach of a construction contract. After the Mills failed to comply with various pretrial orders, Disarrio filed a motion for sanctions on June 16, 1997. At the scheduled pretrial conference the trial court noted the absence of counsel for the Mills and noted the Mills' failure to comply with other pretrial orders. Based on these facts the court granted sanctions by striking the Mills' pleadings and dismissing the case with prejudice. The Mills filed a motion to set aside the order pursuant to Florida Rule of Civil Procedure 1.540(b) based on excusable neglect.

Excusable neglect requires a showing of both a legal excuse for failing to comply with the Florida Rules of Civil Procedure and a meritorious defense. See Schauer v. Coleman, 639 So.2d 637 (Fla. 2d DCA 1994); Collins v. Collins, 519 So.2d 729 (Fla. 2d DCA 1988). The brief motion filed with the trial court offered no explanation for counsel's failure to appear aside from conclusory allegations of mistake and excusable neglect. At the hearing, counsel blamed his failure to appear at the pretrial conference on a scheduling error. The trial court accepted this unsworn and unverified explanation, expressly finding that "plaintiffs are not required to file a verified motion or affidavit...." This conclusion is error.

Excusable neglect must be proven by sworn statements or affidavits. See Schauer, 639 So.2d at 638-39. Unsworn assertions of excusable neglect are insufficient. Id. at 639. The Mills, having correctly sought relief under rule 1.540, must comply with its mandates.

[*1357] Counsel for the Mills neither offered a verified motion nor testified under oath. Allegations of excusable neglect require more than mere legal conclusions. See Blimpie Capital Venture v. Palms Plaza Partners, 636 So.2d 838 (Fla. 2d DCA 1994). Argument by counsel who is not under oath is not evidence. See Murphy v. State, 667 So.2d 375 (Fla. 1st DCA 1995); State v. T.A., 528 So.2d 974 (Fla. 2d DCA 1988). Thus, the failure to verify the claim of excuse is fatal. See Blimpie Capital Venture, 636 So.2d at 841.

The Mills argue that Disarrio waived any right to object to counsel testifying while not under oath. While it is true that challenges to unverified or unsworn testimony must be made contemporaneously at trial, Murphy, 667 So.2d at 376, the record reflects that appellant lodged an objection in this case. Given the unverified nature of the motion and the hearing testimony, the trial court abused its discretion in finding the Mills' actions to be excusable neglect.

We reverse the trial court's order finding excusable neglect and reinstate the order dismissing the Mills' claim.

FRANK, A.C.J., and DOYEL, ROBERT L., Associate Judge, concur.