DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY,

Appellant,

v.

MULAIRE ANDRE and CHARMAINE ANDRE,

Appellees.

No. 4D2022-2680

[January 17, 2024]

Appeal from the County Court for the Seventeenth Judicial Circuit, 

Broward County; Natasha DePrimo, Ellen Feld, and Kal Evans, Judges; 

L.T. Case No. COWE20-009344. 

Kara Rockenbach Link and David A. Noel of Link & Rockenbach, PA, 

West Palm Beach, for appellant.

Garrett S. Elsinger of The Mineo Salcedo Law Firm, P.A., Davie, for 

appellees.

GERBER, J.

The insurer appeals from two county court orders: (1) the predecessor 

court’s sua sponte order entering a default against the insurer based on 

the insurer’s counsel’s failure to appear for a case management conference

occurring after the insurer had filed its answer and affirmative defenses; 

and (2) the second successor court’s order denying the insurer’s amended 

motion to set aside the default and a later-entered default judgment as to 

liability against the insurer.

The insurer primarily argues both orders are void because the 

predecessor court sua sponte had entered the default against the insurer 

without providing the insurer with an opportunity to be heard as to why 

the insurer’s counsel failed to appear at the case management conference. 

The insurer alternatively argues that the second successor court erred in 

denying the insurer’s amended motion to set aside the default and default 

judgment because the insurer’s amended motion satisfied the elements of 

due diligence, excusable neglect, and a meritorious defense.
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We conclude the insurer’s primary argument and alternative argument 

are both meritorious. Therefore, we reverse and remand for the second 

successor court to grant the insurer’s amended motion to set aside the 

default and default judgment as to liability against the insurer.

On the insurer’s primary argument, our standard of review is guided 

by our opinion in Hendrix v. Department Stores National Bank, 177 So. 3d 

288 (Fla. 4th DCA 2015):

Whether a judgment is void is a question of law reviewed 

de novo. A judgment is void if, in the proceedings leading up 

to the judgment, there is a violation of the due process 

guarantee of notice and an opportunity to be heard. If a 

judgment is void, a party is not required to demonstrate 

excusable neglect or a meritorious defense.

... [Florida] Rule [of Civil Procedure]1.500(b) provides that 

where, as here, a “party has filed or served any paper in the 

action, that party shall be served with notice of the application 

for default.”

Florida courts, including this court, have held that where, 

as here, a defendant files substantive papers in the action, 

rule 1.500(b)’s notice requirement also requires a hearing.

Id. at 290 (internal brackets, citations, and some quotation marks 

omitted).

Here, to the extent the predecessor court sua sponte had entered a 

default against the insurer due to the insurer’s counsel’s failure to appear 

for the case management conference, the insurer was entitled to an 

opportunity to be heard as to why the noncompliance was not willful or in 

bad faith before the default’s entry. See Int’l Energy Corp. v. Hackett, 687 

So. 2d 941, 943 (Fla. 3d DCA 1997) (“[E]ven if the Uniform [Pre-Trial] Order 

had specifically listed default as a possible sanction for noncompliance, 

notice and opportunity to be heard must still be given to the defending 

party for a determination of whether the noncompliance was willful or in 

bad faith.”). Thus, because the predecessor court did not provide the 

insurer with an opportunity to be heard, the predecessor court’s default, 

and the first successor court’s default judgment, were void for lack of due 

process.

The insurer’s alternative argument, for which we apply an abuse of 

discretion standard of review, is equally meritorious, because the insurer’s 
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amended motion to set aside the default and default judgment satisfied 

the elements of due diligence, excusable neglect, and a meritorious 

defense. See Chigurupati v. Progressive Am. Ins. Co., 132 So. 3d 263, 265 

(Fla. 4th DCA 2013) (“[W]e review an order denying a motion to vacate a 

default for an abuse of discretion.”); Suntrust Mortg. v. Torrenga, 153 So.

3d 952, 953 (Fla. 4th DCA 2014) (“A trial court’s determination on a motion

for relief from judgment is reviewed for an abuse of discretion.”) (citation 

omitted); Wolf v. Peter M. Habashy, P.A., 361 So. 3d 379, 381 (Fla. 4th DCA 

2023) (“To set aside a default final judgment, the trial court must find 

excusable neglect, a meritorious defense, and due diligence in seeking 

relief.”).

First, only five days after the first successor court entered the final 

judgment against the insurer, the insurer filed its motion (later amended) 

to set aside the default and default judgment, thus satisfying the due 

diligence element. Wolf, 361 So. 3d at at 382 (“[A]ppellants filed their 

motion within six days of the default final judgment. This shows due 

diligence.”).

Second, the insurer’s amended motion contained its counsel’s sworn 

statements establishing that his failure to attend the case management 

conference was due to a calendaring error. The insurer’s amended motion 

also included the legal assistant’s affidavit, in which she swore that she 

inadvertently had not added the case management conference to the 

insurer’s counsel’s calendar. These sworn statements satisfied the 

excusable neglect element. See Elliott v. Aurora Loan Servs., LLC, 31 So.

3d 304, 307 (Fla. 4th DCA 2010) (“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.’” (quoting Somero v. Hendry Gen. Hosp., 467 So. 2d 

1103, 1106 (Fla. 4th DCA 1985))).

Third, it is uncontroverted that before the predecessor court sua sponte 

entered the default against the insurer, the insurer had filed its answer 

containing facially meritorious defenses, thus satisfying that element.

We recognize that county courts must manage dockets with hundreds 

of insurance cases, some of which are delayed due to counsel’s failure on 

both sides to abide by case management orders. Here, however, the entry 

of a default and default judgment in a meritoriously-defended action due 

to counsel’s excusable neglect unfairly punished the insurer for conduct 

in which it did not participate. Thus, we reverse and remand for the 

second successor court to grant the insurer’s amended motion to set aside 

the default and default judgment as to liability against the insurer.
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Reversed and remanded for proceedings consistent with this opinion.

DAMOORGIAN and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.