Hill v. Murphy
| Decision Date | 12 September 2003 |
| Docket Number | No. 2D03-892.,2D03-892. |
| Citation | 872 So.2d 919 |
| Parties | Duane D. HILL, Jr., Appellant, v. Edward D. MURPHY and Arlene R. Murphy, Appellees. |
| Court | Florida District Court of Appeals |
Tina L. Caraballo of Hayes & Associates, Orlando, for Appellant.
Brian P. Deeb and Theresa A. Deeb of Deeb & Brainard, P.A., St. Petersburg, for Appellees.
Duane Hill appeals the trial court's order denying his motion to set aside the default and the default judgment entered against him in a suit brought by Edward and Arlene Murphy. Because the Murphys did not provide Hill with notice of the hearing on their motion for default judgment, we reverse that portion of the order that refused to set aside the default judgment. However, because Hill did not properly establish a meritorious defense, we affirm that portion of the order that refused to set aside the default.
On May 28, 2002, the Murphys sued Hill, Mark S. Kiser, and Hill Design and Construction, Inc., for damages arising out of their failure to complete an addition to the Murphys' house. The complaint alleged counts against Hill for negligent supervision, civil conspiracy, and violations of Florida's Deceptive and Unfair Trade Practices Act (FDUTPA). Despite being served with the complaint, Hill never filed an answer. On July 5, 2002, the clerk entered a default against Hill. Because Kiser and Hill Design and Construction had filed answers, the case continued as to them.
On September 3, 2002, the trial court rendered a final default judgment against Hill for $68,303.48. Hill first learned of the default judgment when he was served with a notice of taking deposition in aid of execution on September 5, 2002. Hill then promptly moved to set aside both the default and the default judgment. Hill filed an affidavit in support of his motion, asserting that he had not been served with the complaint, that he had never received notice of the entry of final judgment, that he had never signed a contract or entered into an agreement with the Murphys, and that he did not know of any basis for a suit against him. After an evidentiary hearing, the trial court denied Hill's motion in its entirety. This appeal followed.
On the issue of setting aside the default, the parties agree that Hill had the burden to establish due diligence in moving to set aside the default, excusable neglect in failing to respond to the complaint, and a meritorious defense to the allegations of the complaint. Coquina Beach Club Condo. Ass'n v. Wagner, 813 So.2d 1061, 1063 (Fla. 2d DCA 2002). The only issue truly in dispute is whether Hill established a meritorious defense.
This court has repeatedly held that in order to establish a meritorious defense, the defendant must tender either a defensive pleading showing the defense or a sworn motion or affidavit stating the facts supporting the meritorious defense. Id. at 1064; Collins v. Collins, 519 So.2d 729, 730 (Fla. 2d DCA 1988); Abray Constr. Co. v. Star Swimming Pools, Inc., 426 So.2d 1046, 1047 (Fla. 2d DCA 1983). Counsel's bare assertion in an unsworn motion that the defendant has a meritorious defense is legally insufficient to allow the court to set aside the default. Abray Constr., 426 So.2d at 1047.
In this case, Hill filed an affidavit in support of his motion to set aside the default in which he asserted that he did not sign a contract with or enter into any agreement with the Murphys. While this assertion does constitute a factual allegation in an affidavit, it does not establish a meritorious defense. The counts against Hill allege negligent supervision, civil conspiracy, and violations of the FDUTPA. None of these counts depend on the existence of a contract between Hill and the Murphys. A factual allegation that does not meet the substance of the allegations against the affiant does not and cannot state a "meritorious" defense. Moreover, Hill's attorney's conclusory assertion that "[c]learly, Duane D. Hill, Jr. has a meritorious defense to this case" is legally insufficient. Accordingly, the trial court did not abuse its discretion in refusing to set aside the clerk's default.
As an alternative, Hill contends on appeal that the default should be set aside because the complaint fails to state a cause of action against him. However, Hill's arguments addressed to the complaint do not attack the sufficiency of the allegations but, rather, contest the merits of the claims. This is an improper basis for a motion to dismiss for failure to state a cause of action. See Consuegra v. Lloyd's Underwriters at London, 801 So.2d 111, 112 (Fla. 2d DCA 2001)
(). Therefore, the trial court did not abuse its discretion in refusing to set aside the default.
The trial court's order refusing to set aside the default judgment is another matter. As to the default judgment, Hill argued that he was entitled to notice of the hearing on the motion for entry of a final default judgment even...
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