DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

ALL MY SONS MOVING & STORAGE OF SOUTHWEST 

FLORIDA, INC. d/b/a ALL MY SONS MOVING & STORAGE,

Appellant,

v.

A & E TRUCK SERVICE, LLC,

Appellee.

No. 2D21-3667

September 23, 2022

Appeal pursuant to Fla. R. App. P. 9.130 from the County Court 

for Lee County; Erik Leontiev, Judge.

Steven Dubberly of Dubberly, P.A., Aventura, for Appellant.

Ashley Segal and Gordon R. Duncan of Duncan & Associates, P.A., 

Fort Myers, for Appellee.

ROTHSTEIN-YOUAKIM, Judge.

All My Sons Moving & Storage of Southwest Florida, Inc. (AMS) 

appeals the trial court's order denying its motion under Florida Rule 

of Civil Procedure 1.540(b) to set aside the default final judgment. 

Because AMS established excusable neglect, identified meritorious 

defenses, and moved diligently to vacate the default, we reverse.
2

A & E Truck Service, LLC (A & E) brought a three-count action 

against AMS for failure to pay for truck repairs. Count one alleged 

a worthless instrument claim under section 68.065, Florida 

Statutes (2019).1 On that count, A & E sought treble damages, 

attorney's fees and a service charge as permitted by statute, and 

costs.

A process server served an AMS sales associate with the 

summons and complaint in May 2020.2 After AMS failed to answer, 

A & E moved for a clerk's default. The motion lacked a certificate of 

service. 

Having been granted a clerk's default, A & E thereafter moved 

for a default final judgment on count one. A & E certified service of 

this motion on AMS, but according to an affidavit later filed by 

1

 A & E has dismissed the two other counts, and they are not 

pertinent to this appeal.

2

 The return of service identified the sales associate as the 

"office administrator" for Linda Dubberly, who is the president and 

registered agent of AMS, and the process server's affidavit, which 

A & E filed with the trial court, averred that the associate had 

identified herself to the process server as such. Nothing in 

Dubberly's affidavit or the sales associate's deposition, however, 

suggests that she held anything other than an entry-level sales 

position.
3

Dubberly, "either AMS never received any court documents, the 

documents were misplaced with other unrelated documents and 

possibly thrown out, or the documents were not properly forwarded 

to [Dubberly's] attention."

The trial court entered default final judgment on count one on 

August 5, 2020, in the full amount requested by A & E, including 

treble damages. Then, on August 10, 2020, counsel for AMS 

appeared and moved to set aside the default. With its motion, AMS 

submitted an affidavit from Dubberly, who averred that she had 

been out of the office since the beginning of the pandemic because 

particular health concerns made her more vulnerable to COVID-19; 

that she had first learned of the lawsuit on August 10, when a 

member of her staff (whom she later identified as one of the 

managers) had notified her that AMS had received a copy of the 

default judgment in the mail; and that upon investigation, she had 

discovered that court documents had not been properly forwarded 

to her attention by "newly hired office staff." A & E opposed AMS's 

motion.

After the trial court denied without prejudice its first motion to 

set aside the default, AMS promptly filed a second motion. AMS 
4

noted that A & E had not alleged in its complaint the "intent to 

defraud" element of a worthless instrument claim. AMS also 

submitted a more detailed affidavit by Dubberly, who reiterated that 

she had first learned of the lawsuit on August 10, 2020. She 

averred further that AMS's policy is to forward all court documents 

to her attention: before the pandemic, managers typically placed 

important documents in her incoming mail file, but because she 

was now working exclusively from home, managers were instead 

supposed to email documents to her. She averred that if the sales 

associate who had accepted service had followed proper procedure, 

the associate would have forwarded a copy of the summons and 

complaint to a manager who would have forwarded it to her, but 

her investigation revealed that the policy for forwarding documents 

to her had not been followed.

Dubberly also averred that AMS had stopped payment on the 

check to A & E because AMS had learned that A & E had not 

performed the promised repairs but had still charged AMS for them. 

AMS had been compelled to take the truck—which still did not run 

properly—to another mechanic.
5

A & E deposed the sales associate and filed a transcript of her 

deposition with the trial court in support of its opposition to AMS's 

second motion. During the deposition, the associate testified, 

among other things, that she had been working for AMS since June 

2019; that she did not recall having been served with the summons 

and complaint; that only the "owners" (referring to Dubberly and 

her husband, Kevin Dubberly) have access to the mail; and that 

neither "owner" had come into the office since the pandemic started, 

although Kevin Dubberly used to be there every weekday from 9:00 

a.m. to 5:00 p.m. Although the associate also testified that she had 

not been trained specifically on "how to handle court documents if 

they were delivered to the office," she did not dispute that AMS's 

policy was that important documents were supposed to be 

forwarded to Dubberly. A & E also filed affidavits from the process 

server, who averred that the associate had accepted service of the 

summons and complaint, and from the paralegal who assertedly 

had mailed A & E's motion for default final judgment to AMS.

After hearing argument, the trial court denied AMS's second 

motion to set aside the default. Relying on the associate's 

deposition testimony, the court found that both before and during 
6

the pandemic, AMS had suffered from chronic disorganization rising 

to the level of "gross negligence." The court therefore concluded 

that AMS had failed to establish excusable neglect.

Analysis

Florida has "a strong preference for lawsuits to be determined 

on the merits and [] courts should liberally set aside defaults under 

appropriate circumstances." Geer v. Jacobsen, 880 So. 2d 717, 720 

(Fla. 2d DCA 2004). "All reasonable doubts should be resolved in 

favor of setting aside the default." Szucs v. Qualico Dev., Inc., 893 

So. 2d 708, 710 (Fla. 2d DCA 2005) (citing Allstate Ins. Co. v. 

Ladner, 740 So. 2d 42, 43 (Fla. 1st DCA 1999)). To set aside a 

default judgment, a party must show excusable neglect and a 

meritorious defense and must move diligently to vacate the default. 

Canney v. Canney, 453 So. 2d 179, 181 (Fla. 2d DCA 1984).

We readily conclude that AMS established excusable neglect.3 

In her affidavit, Dubberly averred that AMS had an established 

3

 We reject without discussion A & E's cursory argument that 

AMS is precluded from establishing excusable neglect because it 

assertedly violated section 48.091(2), Florida Statutes (2019). From 

our limited record, it does not appear that A & E raised this 

argument below or that any record was developed with respect to it. 
7

procedure for routing important documents and averred that it had 

broken down in this instance. Nothing in the associate's deposition 

contradicts these sworn statements. Furthermore, although the 

record established that the usual routine at AMS was somewhat 

disrupted by the pandemic, nothing in the record supports the trial 

court's finding of chronic disorganization, let alone "gross 

negligence," either before or during the pandemic.

We have recognized several times that an isolated breakdown 

in established procedures may constitute excusable neglect and 

have little difficulty concluding that that authority applies here. 

See, e.g., Mercury Marine Indus. v. Dillon, 779 So. 2d 356, 357 (Fla. 

2d DCA 2000) (determining that losing or misplacing lawsuit papers 

in a filing cabinet, despite a "usually reliable corporate procedure," 

constituted excusable neglect); Marshall Davis, Inc. v. Incapco, Inc., 

558 So. 2d 206, 207 (Fla. 2d DCA 1990) (holding that the failure of 

an employee—for "unknown reasons"—to follow corporate policy for 

handling court documents demonstrated excusable neglect); see 

also S.B. Partners v. Holmes, 479 So. 2d 280, 282-83 (Fla. 2d DCA 

In any event, the trial court did not identify it as a basis for its 

ruling, and A & E cites no authority supporting it. 
8

1985) (holding that the misplacing of complaint by a disorganized 

corporation may have shown "bureaucratic ineptitude" but still 

constituted excusable neglect); cf. Otero v. Gov't Emps. Ins. Co., 606 

So. 2d 443, 444 (Fla. 2d DCA 1992) (reversing the trial court's 

finding of excusable neglect because GEICO wholly failed to 

respond to "a continuing shower of legal proceedings naming it as 

the defendant, including a notice of trial," over a nine-month period; 

observing that "GEICO is not a mom-and-pop business confronted 

by an occasional lawsuit" but "a large corporate entity whose 

business includes engaging in litigation on a regular basis"; and 

concluding that GEICO's inaction "clearly constitutes gross 

negligence barring GEICO from relief").

AMS also proved that it has meritorious defenses. The trial 

court entered a default final judgment on a worthless instrument 

claim without A & E ever having alleged in its complaint that AMS 

intended to defraud A & E. But a plaintiff can only obtain damages 

under section 68.065(3)(a) of the Florida Statutes if the "maker . . . 

stops payment on the instrument with intent to defraud." See 

Sanders Farm of Ocala, Inc. v. Bay Area Truck Sales, Inc., 235 So. 

3d 1010, 1012–14 (Fla. 2d DCA 2017) (reversing summary 
9

judgment in favor of a plaintiff on a worthless instrument claim 

because stopping payment on a check does not by itself establish 

an "intent to defraud"). Moreover, AMS's president averred that 

after tendering payment, AMS had learned that A & E had not 

performed the repairs it had agreed to perform and that the repairs 

that had been attempted had failed. AMS should be allowed the 

opportunity to prove this. Cf., e.g., Sanders Farm of Ocala, 235 So. 

3d at 1012-13 (holding that an issue of fact precluded summary 

judgment on the "intent to defraud" element of a worthless 

instrument claim when the truck repairs performed by plaintiff 

exceeded the scope of defendant's authorization); Maung v. Nat'l 

Stamping, LLC, 842 So. 2d 214, 216 (Fla. 3d DCA 2003) (reversing 

summary judgment on the "intent to defraud" element of a 

worthless instrument claim because the goods sold by the plaintiff 

may have been counterfeit). 

Finally, AMS moved expeditiously to set aside the default. See 

Coquina Beach Club Condo. Ass'n, v. Wagner, 813 So. 2d 1061, 

1064 (Fla. 2d DCA 2002) (explaining that in evaluating whether a 

party has exercised due diligence in moving to vacate a default 

judgment, the court must consider the length of any delay and its 
10

reasons (citing Cinkat Transp., Inc. v. Maryland Cas. Co., 596 So. 2d 

746, 747 (Fla. 3d DCA 1992))). Although the parties dispute 

whether AMS ever received a service copy of the motion for default 

judgment, it is undisputed that AMS moved to vacate the default 

judgment the same day that Dubberly learned of it.

Because AMS met its burden of establishing excusable neglect, 

a meritorious defense, and due diligence, the trial court abused its 

discretion in denying the motion to set aside the default final 

judgment. We therefore reverse and remand for further proceedings 

consistent with this opinion.

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.

Opinion subject to revision prior to official publication.