IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION
CASE NUMBER: 16-030371-CA-01

VISTA CONSTRUCTION SERVICES, INC.,

a Florida Corporation,

Plaintiff,
v.

SOLID BUILDERS, INC.,

A Florida Corporation,

Defendants.
_____________________________________/
VERIFIED MOTION TO SET ASIDE FINAL DEFAULT JUDGMENT

COMES NOW, the Defendant Solid Builders, Inc.., by and through undersigned counsel, and

files this Motion to Set Aside Default Judgment and alleges as follows:

1. Plaintiff filed its Complaint on November 28, 2016. Defendant’s resident agent was served on

December 2, 2016.

2. On December 21, 2016, prior to recessing for holiday break, an employee at Defendant

corporation contacted counsel for Plaintiff informing him that additional time was necessary

to retain the services of counsel.

3. On January 11, 2017, a motion for default was filed. It was granted by the clerk the following

day. A Final Judgment After Default was entered on February 10, 2017.

4. This is an action between two construction companies where Plaintiff was a subcontractor of

Defendant. Plaintiff alleges that it performed work and that Defendant failed to pay for this

work. Defendant not only has a viable defense, but also intends on filing counterclaims

against Plaintiff for damages suffered as a result of Plaintiff’s failure to perform its

contractual obligations.

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5. Rule 1.540(b) of the Florida Rules of Civil Procedure permits a party to a suit set aside a

final default judgment upon a showing of mistake, inadvertence, surprise, or excusable

neglect. 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. Lazcar Int'l, Inc. v. Caraballo,

957 So. 2d 1191, 1192 (Fla. 3d DCA 2007); Airport Centre, Inc. v. Ugarte 91 So. 3d 936

(Fla. 3d DCA 2012). Each point will be addressed in order.

6. The first element of the standard governing relief from defaults is that the party moving to set

aside a default must show excusable neglect. The facts that purport to establish the claim of

excusable neglect must be verified either in the motion to set aside the default or in a

supporting affidavit. See Elliott v. Aurora Loan Services, LLC, 31 So. 3d 304 (Fla. 4th DCA

2010); Geer v. Jacobsen, 880 So. 2d 717 (Fla. 2d DCA 2004). It would be impossible to

catalog all of the circumstances that could constitute excusable neglect because the issue is

one that depends on the facts of each case. Philip J. Padovano, Civil Practice § 9:4 (2016-

2017 ed.).

7. Florida courts are likely to find excusable neglect if the defendant has a policy for handling a

summons and complaint and if the failure to serve a responsive pleading was due to an

oversight or omission in the execution of that policy. See Merrill Lynch Mortg. Capital, Inc.

v. Hallmark Industries, Inc., 627 So. 2d 12 (Fla. 2d DCA 1993) (the summons and complaint

remained on an employee's desk and were not forwarded to the proper person as required by

the corporate policy); Marshall Davis, Inc. v. Incapco, Inc., 558 So. 2d 206 (Fla. 2d DCA

1990) (an employee failed to follow an established corporate policy of mailing the

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 summonses and complaints to local counsel for the corporation); Okeechobee Imports, Inc. v.

American Sav. and Loan Ass'n of Florida, 558 So. 2d 506 (Fla. 3d DCA 1990) (an employee

did not follow the established policy of forwarding suit papers to the corporate president or

counsel); See also Marshall Davis, Inc. v. Incapco, Inc., 558 So. 2d 206 (Fla. 2d DCA 1990);

Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987); Somero v.

Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA), review denied, 476 So. 2d 674 (Fla.

1985).

8. Defendant operates a successful general contracting business and has litigated multiple

matters in the past as well as having several pending cases open at present. A default has

never been entered against Defendant. This is because Solid Builders, Inc. has a policy

which requires any complaint to be forwarded to the company’s president. The president and

sole registered corporate officer is Ignacio Hernandez. The complaint in this matter was

forwarded from the company’s registered agent to Robin Crawley, an employee of Solid

Builders, Inc. Ms. Crawley informed opposing counsel that defendant would require

additional time to file a responsive pleading to the answer because defendant needed

additional time to retain counsel. This e-mail from Ms. Crawley to Plaintiff’s counsel was

answered as to another issue raised in the e-mail, but the request for additional time to seek

counsel was not addressed. Ms. Crawley never informed Mr. Hernandez of the pendency of

the case until he saw the Final Judgment After Default on March 1, 2017.

9. The default judgment entered by the clerk was erroneously entered, as an employee of

defendant corporation e-mailed Plaintiff’s counsel on December 21, 2016 informing him that

defendant intended on contesting the action. Rule 1.500(a) prohibits the entry of a default

judgment by the clerk if the defendant has served any document or pleading. Fla. R. Civ. P.

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 1.500(a). The e-mail sent by defendant to plaintiff was sufficient service of a paper to inform

plaintiff of defendant’s intent to defend itself in the action and the entry of default by the

clerk was improperly entered. See Meyerson v. Block, 404 So. 2d 807 (Fla. 3d DCA 1981)

(Where defendants had served, by mail, an answer upon plaintiff's counsel, entry of default

judgment against them was improper, in that this rule provides that default judgment will be

entered against the party against whom affirmative relief has been sought only if that party

has failed to “file or serve” any paper in the action).

10. Mr. Hernandez was involved in a severe automobile accident and was hospitalized for

months. He has had multiple surgeries performed and had to relearn how to walk. He has

severe nerve damage to one of his legs and a foot, which requires that he walk with the

assistance of a cane at just 35 years old. Every day, Mr. Hernandez lives in severe pain and

has lost ambulatory independence. After learning of a medical treatment and physical

therapy option unavailable in the United States, Mr. Hernandez began utilizing these services

in Cuba. As a result, Mr. Hernandez was out of the country from January 5 th through the 9th,

January 21st through the 31st, and February 11th through 26th of this year.

11. On March 1, 2017, Mr. Hernandez learned from Ms. Crawley that a Final Judgment After

Default was entered in this matter. He immediately notified an attorney and requested

assistance. On March 2, 2017, Mr. Hernandez was informed by that attorney that a conflict

of interest existed that impaired counsel’s ability to assist defendant. The undersigned

counsel was consulted during the week of March 6, 2017 regarding this matter and

immediately began preparing the answer and the instant motion. It is being filed at counsel’s

first available opportunity the same week he was first consulted and retained.

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12. The defendant has met its burden of illustrating excusable neglect because a policy exists

which requires that the president be notified of any complaint filed against defendant. The

employee mistakenly failed to notify the corporate president after requesting additional time

from opposing counsel within which to file a responsive pleading. This mistake was then

compounded while the company was on holiday break and then because Mr. Hernandez was

traveling to Cuba throughout much of January and February for medical treatments. While

in Cuba, Mr. Hernandez does not have cellular telephone service. This confluence of events

led to Solid Builders, Inc. mistakenly not filing an answer in this case. At no time did the

defendant knowingly disregard this matter.

13. The second element of the standard that applies to relief from defaults is that the party

moving to set aside a default must show that there is a meritorious defense to the claim.

When used in connection with a motion to set aside a default, the term “meritorious” means

only that the defendant plans to raise a defense that may have some merit. See Electric

Engineering Co., Inc. v. General Elec. Canada, Inc., 610 So. 2d 51 (Fla. 3d DCA 1992)

(holding that the motion to dismiss raising the factual basis for a statute of frauds defense

was a sufficient showing of a meritorious defense even though the answer raising only a

general denial was not); Rivera v. Department of Revenue ex rel. Rivera, 899 So. 2d 1265

(Fla. 2d DCA 2005) (holding that counsel's unverified assertion that the defendant has a

defense is insufficient and that counsel must instead tender a defensive pleading or affidavit);

compare Elliott v. Aurora Loan Services, LLC, 31 So. 3d 304 (Fla. 4th DCA 2010) (holding

that the movant's tender of a proposed answer and affirmative defense satisfied the

meritorious defense element). The defendant need only show that the defense is meritorious,

not that it is likely to succeed. Rice v. James, 740 So. 2d 7 (Fla. 1st DCA 1999)

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14. The defendant has meritorious defenses and counterclaims against plaintiff. Defendant hired

plaintiff as a subcontractor to install windows on a luxury home located at 1379 N. Venetian

Way. Notably, the Subcontract Agreement was not attached to the complaint. Section 5.2 of

the Subcontract Agreement is entitled “Withholding Payment for Deficiency of

Subcontractor Performance” and permits the defendant to withhold payment from plaintiff in

the event plaintiff was deficient in its performance. This is precisely what happened.

Plaintiff’s performance required defendant to retain the services of other subcontractors to fix

the substandard, deficient work of plaintiff. Defendant notified plaintiff of their deficient

performance and plaintiff failed to rectify their mistakes. Defendant has counterclaims for

the costs of mitigating its damages suffered by plaintiff’s actions and inactions.

15. Plaintiff’s second and third causes of action relate to services plaintiff purports to have

rendered for a residence located at 847 N. Shore Dr.. Defendant sought a quote from

plaintiff for services to be rendered on the home. Plaintiff attaches Exhibit C to its

complaint, consisting of a two page document clearly captioned as “PROPOSAL” and two

documents entitled “DETAILED CUSTOMER PROPOSAL”. Exhibit D of the complaint is

an e-mail chain between an employee of defendant and the plaintiff in which plaintiff asks if

defendant is ready for plaintiff to begin work on the project. There is nothing in the e-mail

chain to suggest that defendant responded in the affirmative. Defendant tendered a written

agreement for services to plaintiff and the companies failed to reach an agreement. No work

was performed for which plaintiff is entitled to be paid. Plaintiff supplied a proposal for

services, defendant tendered a written contract, and the parties failed to do business.

16. Defendant easily satisfies its burden under the second prong requiring that it articulate a

defense that could be meritorious.

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17. The third and final element of the standard is that the moving party must act with reasonable

diligence to seek relief after learning of the default. See Marshall Davis, Inc. v. Incapco,

Inc., 558 So. 2d 206 (Fla. 2d DCA 1990) (filing of the motion to vacate the default judgment

within 15 days of learning of the judgment constituted reasonable diligence); Gables Club

Marina, LLC v. Gables Condominium and Club Ass'n, Inc., 948 So. 2d 21 (Fla. 3d DCA

2006) (filing a motion to vacate 11 days after counsel became aware of the default was due

diligence); World's Finest Products, Inc. v. Carpenter, 564 So. 2d 626 (Fla. 4th DCA 1990)

(holding that the defendant had not exercised due diligence in a case in which 48 days had

passed between the defendant's learning of the default and the request to vacate the default).

18. There is no fixed time for filing a motion to set aside a default. Rather, the courts determine

the timeliness of the motion based on the circumstances of the case. In deciding whether a

party acted with due diligence in seeking relief from a default the courts consider not only the

extent of the delay but also the reasons for the delay. Cinkat Transp., Inc. v. Maryland Cas.

Co., 596 So. 2d 746 (Fla. 3d DCA 1992); Roberts v. Safeway Ins. Co., 610 So. 2d 700 (Fla.

3d DCA 1992).

19. Defendant learned of the final judgment on March 1, 2017 and retained counsel within a

matter of days, having consulted with an attorney immediately after learning about this case.

This motion and the answer and counterclaims are being served within 10 days and is

certainly within the time considered to be diligent by Florida courts. See Marshall Davis,

Inc. v. Incapco, Inc., 558 So. 2d 206 (Fla. 2d DCA 1990); Gables Club Marina, LLC v.

Gables Condominium and Club Ass'n, Inc..

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WHEREFORE, the Defendant Solid Builders Inc.. respectfully requests this Honorable Court

grant this motion and vacate the Final Judgment After Default entered in this matter, as well as

accept the filing of Defendant’s Answer..

Respectfully submitted,

/s/ Jose Teurbe-Tolon________

JOSE TEURBE-TOLON, ESQ.
Florida Bar Number: 87791
Attorney for Plaintiff

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 VERIFICATION OF MOTION

COMES NOW, Ignacio Hernandez, and verifies this Motion to Set Aside Final Default

Judgment.

Under penalties of perjury, I declare that I have read the foregoing “VERIFIED

MOTION TO SET ASIDE FINAL DEFAULT JUDGMENT” and that the facts stated in it are

true and correct to the best of my knowledge. I further certify that I am fluent in English and that

I understand the contents of the motion.

Ignacio Hernandez

STATE OF FLORIDA
COUNTY OF ________

Sworn to (or affirmed) and subscribed before me this _____ day of _____, 20___, by
(name of person making statement).

(NOTARY SEAL) (Signature of Notary Public-State of Florida)

(Name of Notary Typed, Printed, or Stamped)

Personally Known ______ OR Produced Identification _______

Type of Identification Produced_______________________________________________

COMES NOW, Robin Crawley, and verifies this Motion to Set Aside Final Default

Judgment.

Under penalties of perjury, I declare that I have read the foregoing “VERIFIED

MOTION TO SET ASIDE FINAL DEFAULT JUDGMENT” and that the facts stated in it are

true and correct to the best of my knowledge. I further certify that I am fluent in English and that

I understand the contents of the motion.

Robin Crawley

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STATE OF FLORIDA
COUNTY OF ________

Sworn to (or affirmed) and subscribed before me this _____ day of _____, 20___, by
(name of person making statement).

(NOTARY SEAL) (Signature of Notary Public-State of Florida)

(Name of Notary Typed, Printed, or Stamped)

Personally Known ______ OR Produced Identification _______

Type of Identification Produced_______________________________________________

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing document was electronically
served upon Mark A. Kamilar, Esq., Attorney for the Plaintiff at kamilar@bellsouth.net and
mkamilarlaw@gmail.com on this 9th day of March, 2017.

/s/ Jose Teurbe-Tolon________

JOSE TEURBE-TOLON, ESQ.
Florida Bar Number: 87791
Attorney for Plaintiff
2250 S.W. 3RD AVENUE #303
MIAMI, FLORIDA 33129
(305) 733-1592
FAX: (305) 854-5324
JOETT@HOTMAIL.COM

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