Church of Christ v. Church of Christ

• Court: Florida District Court of Appeals
• Writing for the Court: Per Curiam
• Citation: Church of Christ v. Church of Christ, 947 So.2d 557 (Fla. App. 2006)
• Decision Date: 27 December 2006
• Docket Number: No. 3D06-1957.,3D06-1957.
• Parties: The CHURCH OF CHRIST WRITTEN IN HEAVEN, INC., a Georgia nonprofit corporation, Appellant, v. The CHURCH OF CHRIST WRITTEN IN HEAVEN OF MIAMI, INC., a Florida corporation, Appellee.

947 So.2d 557

The CHURCH OF CHRIST WRITTEN IN HEAVEN, INC., a Georgia nonprofit corporation, Appellant, v. The CHURCH OF CHRIST WRITTEN IN HEAVEN OF MIAMI, INC., a Florida corporation, Appellee.

No. 3D06-1957.

District Court of Appeal of Florida, Third District.

December 27, 2006.

Smoler Lerman Bente & Whitebook, Miami, and Kathleen Bente, Hollywood, for appellant.

Mendez & Mendez, and Sergio Mendez, Coral Gables, for appellee.

Before GERSTEN, GREEN, and RAMIREZ, JJ.

PER CURIAM.

The Church of Christ Written in Heaven, Inc., a Georgia non-profit corporation, appeals an order vacating a default judgment entered against appellee The Church of Christ Written in Heaven of Miami, Inc., a Florida corporation. We reverse because the local Miami church failed to establish excusable neglect and a meritorious defense sufficient to allow the trial court to vacate the default final judgment.

The Georgia church filed an amended complaint which it served upon the local Miami church on April 14, 2005. The local Miami church did not respond to the amended complaint and the Georgia church moved for the entry of a default. The clerk entered a default against the local Miami church. On June 27, 2005, the court entered a default final judgment against the local Miami church. The local Miami church thereafter moved to vacate the final default judgment. In its unverified motion, the local Miami church alleged that its failure to file a response was due to mistake, inadvertence and excusable neglect, and that it had a meritorious defense. At the hearing on the motion to vacate, Arturo Alfonso, who had been counsel for a separate defendant, testified that he had failed to file an Answer on behalf of the local Miami church at the time during which he filed one on behalf of the separate defendant. Alfonso also testified that he had never been retained to represent the local Miami church.

The trial court subsequently determined that there had been a showing of excusable neglect and granted the motion, finding that "while all of the procedural requirements may not have been met at the outset, they [had], over the history of the case, been met." We find that the motion to vacate was legally insufficient.

Florida law requires the party who moves to vacate the entry of a default and default judgment to demonstrate excusable neglect, a meritorious defense, and due diligence in order for the trial court to vacate a default and default judgment. See North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla.1962); Geer v. Jacobsen, 880 So.2d 717 (Fla. 2d DCA 2004); Dade Cty. v. Lambert, 334 So.2d 844 (Fla. 3d DCA 1976). Excusable neglect must be proved by sworn statements or affidavits. See ...