### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

MANUEL FERNANDEZ, JR.
, Appellant,

v.

ROSEANN DIFIORE a/k/a ROSEANN DIFIORE ROSEN
, Appellee

.

No. 4D 19

- 116

[ September 18, 2019 ]

Nonfinal a ppeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Mily R. Powell , Judge; L.T. Case No. CACE18

- 009093 (03)

.

Elizabeth Olivia Hueber and Michael L. Feinstein of Michael L. Feinstein, P.A., Fort Lauderdale, for appellant.

St even M. Swickle of Steven M. Swickle, P.A., Fort Lauderdale, for appellee.

P ER C URIAM

.

Manuel Fernandez, Jr. (“Defendant”) appeals from the trial court’s

denial of his second motion to vacate the default judgment in favor of Roseann Difiore (“Plaintiff”) . The trial court denied the second motion for failure to exercise due diligence

. Defendant argues the court erred

because due diligence applied only to the initial motion to vacate, not the subsequent motion. We agree and reverse.

Background

Plaintiff sued Defendant for an unpaid promissory note

. Other suits were pending between Plaintiff’s husband and Defendant. In this suit, Defendant failed to serve or file any responsive papers, and final default judgment was entered. A week later, Defe ndant filed an answer,

affirmative defenses and counterclaim. Defendant also moved to vacate
the default judgment , alleging excusable neglect, due diligence and a

meritorious defense. Attached was an affidavit from defense counsel, asserting that he fail ed to timely answer because his legal assistant (1)2 “was confused due to the multiple current actions between” the parties and made a scheduling mistake , and (2) “ was out sick and in the hospital with encephalitis.” After a hearing, the trial court denied the motion

“ without prejudice .” T he following day, Defendant filed the affidavit of defense counsel’s legal assistant; this affidavit alleged the same facts as

defense counsel’s affidavit

.

Sixty

- five days later, Defendant filed his second motion to vacate the default judgment. No new grounds were alleged , and Plaintiff filed no opposition

. A t the hearing on the second motion

, neither party presented testimony or evidence. D efense counsel argued that correcting the

affid avit “was the critical issue stopping the default judgment from being set aside,” but the trial court stated that it “[did not ] remember that to be

the case .” Plaintiff argued Defendant did not exercise due diligence in filing the s econd m otion more than two months later, so the motion should

be denied. Defense counsel replied that “ we do not recognize the default judgment case law to apply to diligence upon filing an amended motion, only the original motion. ” The trial court denied the s econd m otion “ for

failure to exercise due diligence. ” This appeal followed

.

Analysis

Defendant argues the trial court erred in denying the second motion to

vacate default because due diligence applies only to the initial motion to
vacate, not to subsequent motions. Plaintiff responds that due diligence should apply to the second motion , otherwise the denial of the initial

motion “acts as a stay or tolling which allows the moving party to take no

further action.”

A ruling on a motion to vacate is usually reviewed under the abuse of

discretion standard ; however, when there is no factual dispute and the

trial court ’ s ruling is made as a matter of law, the standard of review is de

novo

. Fla. Eurocars, Inc. v. Pecorak

, 110 So. 3d 513, 515 (Fla. 4th DCA 2013) (citing Mourning v. Ballast Nedam Constr. Inc. , 964 So. 2d 889, 892 (Fla. 4th DCA 2007) )

.

A defendant’s motion to vacate a default final judgment must

demonstrate the following : (1) the failure to file a responsive pleading

resulted from excusable neglect; (2) a meritorious defense; and (3) the

defendant acted with due diligence in seeking relief from the default. Fla. Eurocars, Inc. , 110 So. 3d at 515 (citation omitted). Where, as here, a trial

court denies a mot ion to vacate a default judgment based on a failure to exercise due diligence, “the only issue to be addressed on appeal is3 whether the defendants demonstrated that they acted with due diligence in seeking relief from the default judgment.” Id.

“ Florida public policy favors the setting aside of defaults so that controversies may be decided on the merits. ” Lloyd ’ s Underwriter ’ s a t London v. Ruby, Inc. , 801 So. 2d 138, 139 (Fla. 4th DCA 2001) (citing N. Shore Hosp., Inc. v. Barber , 143 So. 2d 849, 852

- 53 (Fla. 1962)). “In implementing this policy, ‘if there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits.’” Id . (quoting N. Shore Hosp. , 143 So. 2d at 853). “This is particularly true in cases in which the parties are not prejudiced by the late filing.” Tutwiler Cadillac, Inc. v.

Brockett , 551 So. 2d 1270, 1272 (Fla. 1st DCA 1989). Furthermore, “[W]here inaction results f rom clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted t o be

heard on the merits.” Fla. Eurocars, Inc. , 110 So. 3d at 515 ( citations omitted).

Here, t he trial court denied the second motion to vacate default for failure to exercise due diligence. Defendant’s initial motion to vacate, filed

a week after the default judgment, was denied without prejudice

— giving him an opportunity to file a sufficient motion and affidavit

. Defendant filed

a new affidavit the next day , in which the assistant alleged the same basis for excusable neglect sworn to by defense couns el

. The second motion followed, raising no new grounds for relief.

We need not address Defendant’s argument that “ the default judgment

case law [does not] apply to diligence upon filing an amended motion, only the original motion. ” U nder the circumstances of this particular case, we find that Defendant did exercise due diligence in filing his amended motion

to vacate. Although t his motion was filed sixty

- five days following the initial denial, (1) it was preceded by (and relied upon) the next

- day filing of the assistant’s affidavit; (2) Plaintiff failed to file a pleading in opposition

to this second motion ; (3) the trial court ha d not a nnounced a deadline for filing an amended motion to vacate

, following its denial of the original

mo tion without prejudice ; and (4) Plaintiff has failed to allege, let alone demonstrate, prejudice due to the extra time between the filing of the assistant’s affidavit and the filing of the second motion to vacate

.

Conclusion4 Based on the foregoing, we reverse the trial court ’ s den ial of Defendant’s second motion to vacate the default final judgment. As the trial court expressly denied th is motion for failure to exercise due diligence, our holding is limited to our determination , as set fo rth above, that Defendant acted with due diligence in seeking relief from judgment. See Fla.

Eurocars , 110 So. 3d at 517. Thus, “[o] n remand, the trial court should consider the other elements required to vacate the final judgment, including whether the defendants can demonstrate excusable neglect and

a meritorious defense. ” Id.

M AY
, D AMOORGIAN and F ORST
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.