Claffey v. Serafino

• Court: Florida District Court of Appeals
• Writing for the Court: BOARDMAN
• Citation: Claffey v. Serafino, 338 So.2d 270 (Fla. App. 1976)
• Decision Date: 22 October 1976
• Docket Number: No. 76--682,76--682
• Parties: John CLAFFEY and Jo Ann Claffey, husband and wife, Appellants, v. Andrew P. SERAFINO, Appellee.

Page 270

338 So.2d 270

John CLAFFEY and Jo Ann Claffey, husband and wife, Appellants, v. Andrew P. SERAFINO, Appellee.

No. 76--682.

District Court of Appeal of Florida, Second District.

Oct. 22, 1976.

Steven L. Sommerfield, Venice, for appellants.

John J. Dulmer, Jr., of Snyder & Dulmer, Venice, for appellee.

BOARDMAN, Acting Chief Judge.

Appellants on January 20, 1976 filed suit for ejectment against appellee. Appellee failed to answer the complaint, and a default was entered March 16, clearly more than twenty days after service of the summons and copy of the complaint. The final judgment was rendered the next day. On March 26 appellee moved for a rehearing and for relief from the final judgment. This is an appeal from the trial court's order of April 7 vacating the final judgment and default.

The Florida courts have liberally applied Fla.R.Civ.P. 1.540(b) to set aside defaults to permit trial on the suits. See Freedman v. Geiger, 314 So.2d 189 (Fla.3d DCA 1975). Nonetheless the burden is on the movant to establish both a legal excuse for failure to comply with the rules and a meritorious defense. E.g. Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So.2d 733 (Fla.1st DCA 1964). The affidavit submitted by appellee to the trial court in support of his motion states that he did not understand his legal obligations attendant to service of process and receipt of the complaint. He submits that his misimpression that he would receive further notice of the proceedings was legal cause for his failure to answer the complaint. Prior to the institution of this action appellee was advised by his usual attorneys that they could not represent him in a dispute between him and appellants. He did not contact other counsel until several days after the entry of the...