DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MANUEL FERNANDEZ, JR.,

Appellant,

v.

ROSEANN DIFIORE a/k/a ROSEANN DIFIORE ROSEN,

Appellee.

No. 4D19-116

[September 18, 2019]

Nonfinal appeal 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.

Steven M. Swickle of Steven M. Swickle, P.A., Fort Lauderdale, for 

appellee.

PER CURIAM.

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, Defendant 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 failed to timely answer because his legal assistant (1) 
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“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.” The 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. At the hearing on the second motion, neither party presented 

testimony or evidence. Defense counsel argued that correcting the 

affidavit “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 second motion 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 second motion “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 motion to vacate a default judgment based on a failure to 

exercise due diligence, “the only issue to be addressed on appeal is 
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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 at 

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 from 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 to be 

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

omitted).

Here, the 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 counsel. 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.” Under the circumstances of this particular case, we 

find that Defendant did exercise due diligence in filing his amended motion 

to vacate. Although this 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 had not announced a deadline for 

filing an amended motion to vacate, following its denial of the original 

motion 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. 

Conclusion
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Based on the foregoing, we reverse the trial court’s denial of Defendant’s 

second motion to vacate the default final judgment. As the trial court 

expressly denied this motion for failure to exercise due diligence, our 

holding is limited to our determination, as set forth 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.

MAY, DAMOORGIAN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.