DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

POLYMER EXTRUSION TECHNOLOGY INC. d/b/a GLASSLAM,

Appellant,

v.

GLASSHAPE MANUFACTURING, LTD.,

Appellee.

No. 4D2023-0142

[November 8, 2023]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Hon. Carlos A. Rodriguez, Judge; L.T. Case No. CACE19-

019553. 

John D. Heffling of Hall Booth Smith, P.C., West Palm Beach, for 

appellant.

Adam M. Foslid and Elisa H. Baca of Winston & Strawn LLP, Miami, 

and Timothy A. Kolaya of Stumphauzer Kolaya Nadler & Sloman, PLLC, 

Miami, for appellee.

GROSS, J.

The defendant below, Polymer Extrusion Technology, Inc. (“Polymer”), 

appeals an order denying its motion to vacate a $5,250,000 judgment 

entered after it failed to timely move for a trial de novo following a nonbinding arbitration. We reverse, holding that the trial court abused its 

discretion in failing to set aside the judgment.

The Pleadings

Glasshape Manufacturing, Ltd. (the “plaintiff”), a glass manufacturer, 

sued Polymer, a resin manufacturer, alleging that Polymer supplied it with 

defective resin which caused discolored glass after UV exposure. 

The plaintiff’s complaint asserted three counts: (1) breach of implied 

warranty of merchantability; (2) breach of implied warranty of fitness; and 

(3) common law indemnification. Polymer answered and raised affirmative 

defenses, denying that the resin was defective. In addition, Polymer 
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contended that a limited warranty controlled the plaintiff’s damages, if 

any, and asserted that the plaintiff was negligent either in its mixing of the 

resin or production of the laminated glass. 

The Non-Binding Arbitration

The parties participated in a non-binding arbitration on August 23, 

2022, after submitting statements, summaries, an expert report and 

related materials. On August 31, 2022, the arbitrator issued a decision 

for the plaintiff for $5,250,000. At the outset, the arbitrator acknowledged 

that “there remains testimony to be elicited via depositions and/or expert 

analysis and reporting[.]” The arbitrator believed that “[w]hile additional 

evidence or testimony may be impactful and bolster the Defendant’s 

position on the warranty, . . . the currently submitted and proffered 

warranty evidence is insufficient.” The arbitrator also noted that “[s]everal 

of the arguments presented by the Defendant created doubt, but not 

enough in their current form to bar or overcome Plaintiff’s claims, as they 

are presented.” Ultimately, the arbitrator favored the plaintiff’s expert’s 

opinion over one offered by Polymer’s expert on whether the resin was 

defective.

Trial Court’s September 2, 2022 Order Setting Case for Trial

On August 31, 2022, the trial court held a hearing on the plaintiff’s 

previously-filed motion to specially set a jury trial. Two days later, the 

court set the case for trial during a jury trial docket beginning February 

13, 2023. 

Polymer Fails to Request Trial de Novo

Polymer failed to timely request a trial de novo as required by Florida 

Rule of Civil Procedure 1.820(h).

Polymer Moves to Vacate the Judgment

On October 11, 2022, the plaintiff moved for entry of final judgment. 

The same day, Polymer moved to vacate the judgment. 

On October 19, Polymer filed an amended motion to extend the time to 

file a motion for trial de novo; in the alternative, it moved to vacate any 

judgment entered on the arbitrator’s decision pursuant to Florida Rule of 

Civil Procedure 1.540(b)(1) on the grounds of excusable neglect, mistake, 

and inadvertence. Polymer further asserted that it “has meritorious 

defenses to Plaintiff’s claims, including that the discoloration of laminated 
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glass . . . was not caused by the resin supplied by the Defendant, and that 

there is a limited warranty that would limit any damages recoverable by 

Plaintiff.” Polymer pointed out that the arbitrator noted “in his decision 

that additional testimony and expert analysis is needed.”

Affidavits in Support of Motion to Vacate

Basically, the affidavits in support of the motion to vacate alleged a 

miscommunication between Polymer’s counsel and his legal assistant, 

who was in the process of leaving his firm, and the failure of the assistant 

to calendar the deadline for filing a motion for trial. Polymer’s counsel 

advised his assistant and her replacement that the arbitration did not go 

well and that a motion for trial would need to be filed as soon as the 

arbitrator’s written decision came in. However, after the replacement 

assistant took over, she saw the September 2 order setting the case for 

trial, along with discovery and disclosure deadlines calendared by her 

predecessor, and she assumed that the setting was in response to a postarbitration motion for trial.

The Final Judgment

The trial court entered a final judgment on October 27, 2022, and 

allowed Polymer to schedule an evidentiary hearing on the motion to 

vacate.

Evidentiary Hearing on the Motion to Vacate 

At the hearing, Polymer’s attorney testified consistently with the 

previously-filed affidavits. The plaintiff conceded that Polymer had acted 

with due diligence, but argued that “this is simply a situation where a 

party forgot about a deadline,” which was not excusable neglect. The 

plaintiff also asserted that Polymer failed to establish a meritorious 

defense. Polymer’s counsel replied that Polymer had “raised two defenses 

to this,” and he also suggested that the arbitrator’s decision supported the 

existence of a meritorious defense. 

The Trial Court Denies the Motion to Vacate

The trial court denied the motion to vacate, finding neither excusable 

neglect nor a meritorious defense. This appeal ensued.
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Standard of Review 

“A trial court’s denial of 1.540(b) relief is reviewed for an abuse of 

discretion.” Acosta v. Deutsche Bank Nat’l Tr. Co., 88 So. 3d 415, 417 (Fla. 

4th DCA 2012). We apply “abuse of discretion, not gross abuse, as the 

standard of review, when the trial court has denied a motion to vacate.” 

George v. Radcliffe, 753 So. 2d 573, 575 (Fla. 4th DCA 1999). By contrast, 

the higher standard of “gross abuse of discretion” must be satisfied to 

overturn a trial court’s decision granting relief from judgment. Halpern v. 

Houser, 949 So. 2d 1155, 1157 (Fla. 4th DCA 2007).

The Interplay of Rules 1.820(h) and 1.540(b)

If a party fails to move for a trial de novo “within 20 days of service on 

the parties of [an arbitrator’s] decision” in a non-binding arbitration, the 

decision “shall be referred to the presiding judge, who shall enter such 

orders and judgments as may be required to carry out the terms of the 

decision.” Fla. R. Civ. P. 1.820(h). If the presiding judge enters a final 

judgment, a motion to vacate that judgment “should be considered on its 

merits and in light of case law pertaining to motions to vacate for excusable 

neglect” under Florida Rule of Civil Procedure 1.540. Preferred Mut. Ins. 

Co. v. Davis, 629 So. 2d 259, 261 (Fla. 4th DCA 1993). Florida public 

policy favors “deciding a case on its merits rather than on a technicality.” 

J.J.K. Int’l, Inc. v. Shivbaran, 985 So. 2d 66, 69 (Fla. 4th DCA 2008).

On a defendant’s motion to set aside a default judgment under rule 

1.540(b), the defendant must demonstrate excusable neglect in failing to 

respond as required, the existence of a meritorious defense, and due 

diligence in seeking relief after learning of a default. Wright v. Regions 

Bank, 360 So. 3d 427, 428 (Fla. 4th DCA 2023).

Excusable Neglect

“Excusable neglect is found where 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.” Elliott v. Aurora Loan 

Servs., LLC, 31 So. 3d 304, 307 (Fla. 4th DCA 2010) (internal quotation 

marks omitted). 

A calendaring error by an attorney or an attorney’s staff constitutes 

excusable neglect. See Pierre v. Am. Sec. Ins. Co., 346 So. 3d 62, 63 (Fla. 

4th DCA 2022) (“A calendaring error by an attorney’s staff is one of the 

common reasons that relief is granted under rule 1.540(b)(1).”); Suntrust 

Mortg. v. Torrenga, 153 So. 3d 952, 953 (Fla. 4th DCA 2014) (finding 
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excusable neglect where, due to a clerical or administrative error, an 

attorney failed to calendar the trial date into her internal case management 

system and thus failed to appear at trial); Al Hendrickson Toyota, Inc. v. 

Yampolsky, 695 So. 2d 948 (Fla. 4th DCA 1997) (noting that “the 

established case law deems that calendaring errors are regarded as 

excusable neglect”); but see Suntrust Bank v. Hodges, 12 So. 3d 1278, 

1280–81 (Fla. 4th DCA 2009) (dismissing appeal for lack of jurisdiction 

but nonetheless stating in dicta that the defendant failed to establish 

excusable neglect where counsel for defendant “had inadvertently failed to 

place the motion for trial de novo on the firm’s ‘tickler’ system”).

By contrast, excusable neglect will not be found where a party or his 

attorney “(1) simply forgot or (2) intentionally ignored the necessity to take 

appropriate action; that is to say, where the conduct could reasonably be 

characterized as partaking of gross negligence or as constituting a willful 

and intentional refusal to act.” Somero v. Hendry Gen. Hosp., 467 So. 2d 

1103, 1105–06 (Fla. 4th DCA 1985); see also Chernoff Diamond & Co. v. 

Gallin Assocs., Inc., 258 So. 3d 563, 563 (Fla. 2d DCA 2018) (no excusable 

neglect where defendant’s president “forgot about the lawsuit until he 

received notice of the entry of a final judgment”); In re J.B., 990 So. 2d 520, 

522 (Fla. 2d DCA 2008) (no excusable neglect where mother in termination 

of parental rights proceeding “just forgot” about the trial).

Here, the situation surrounding the missed deadline for filing a motion 

for trial de novo constitutes excusable neglect. The circumstances 

ultimately boil down to a calendaring error stemming from a series of 

oversights and miscommunications between Polymer’s counsel and his 

legal assistants. This was not a case where Polymer’s counsel “simply 

forgot” about the motion for new trial.

Notably, the transition between legal assistants is further evidence of a 

system gone awry, as the new assistant had an understandable 

misunderstanding in believing that a motion for trial de novo had already 

been filed by her predecessor, because her predecessor had calendared 

various deadlines associated with the February 2023 trial date.

Meritorious Defense

In the context of a typical rule 1.540(b) motion, a “meritorious defense 

may be shown by either an unverified pleading or an affidavit.” Gibraltar 

Serv. Corp. v. Lone & Assocs., Inc., 488 So. 2d 582, 584 (Fla. 4th DCA 

1986). A meritorious defense “means simply that the defendant plans to 

raise a defense that may have some merit. The movant need only show 

that the defense it has raised is meritorious, not that it is likely to 
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succeed.” Household Fin. Corp., III v. Mitchell, 51 So. 3d 1238, 1241 (Fla. 

1st DCA 2011). “[A]ffirmative defenses, even when pled with minimal 

specificity, can qualify as meritorious.” Id.

Assuming the requirement of demonstrating a meritorious defense 

applies,1 Polymer made a sufficient showing for the purpose of its motion 

to set aside the judgment. Polymer’s answer to the complaint asserted 

several affirmative defenses, including that the defective glass was caused 

by the plaintiff’s own negligence and that any damages were limited by the 

terms of a limited warranty. Significantly, the arbitrator’s decision 

recognized that “there remains testimony to be elicited” in discovery, 

adding that additional evidence or testimony could bolster Polymer’s 

position on the warranty issue.

Conclusion

For these reasons, we reverse the final judgment and remand for the 

case to be set for a trial de novo.

Reversed and remanded.

WARNER and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1 Polymer did not preserve the argument that it was not required to show a 

meritorious defense.