Opinion
No. 1D22-149
10-06-2022
Jack ABERMAN, Appellant, v. FORD, MILLER & WAINER, P.A., A Florida Corporation, Appellee.
Jessie L. Harrell of The Harrell Firm, Jacksonville, for Appellant. David S. Wainer, III of Ford, Miller & Wainer, P.A., Jacksonville Beach, for Appellee.
Jessie L. Harrell of The Harrell Firm, Jacksonville, for Appellant.
David S. Wainer, III of Ford, Miller & Wainer, P.A., Jacksonville Beach, for Appellee.
Osterhaus, J.
Jack Aberman appeals a final default judgment arguing that his due process rights were violated and that the trial court abused its discretion by denying his motion to set aside the default judgment. We affirm because Aberman waived his jurisdiction-related claims below and failed to demonstrate excusable neglect.
Appellee filed a lawsuit against Aberman claiming not to have been paid for about $6500 of contracted legal work. After seeking to serve Aberman for months and obtaining two enlargements of time to execute a diligent search, Appellee filed a sworn statement attaching a process server's verified return of non-service. See § 49.031, Fla. Stat. (2020). According to the sworn statement, the addresses associated with Aberman were vacant. On this basis, Appellee served Aberman by publication pursuant to Chapter 49, Florida Statutes. When Aberman still did not appear after service by publication, Appellees sought and obtained final default judgment against Aberman.
Within ten days of the Final Default Judgment, Aberman moved to vacate and filed an answer and affirmative defense. His motion acknowledged being served by publication but claimed to have been unaware of it. Aberman's Answer denied most of Appellee's allegations and affirmatively claimed that Appellee had already been paid for the value of its legal services. The Motion and Answer were unverified, and Aberman filed no affidavits supporting his motion to vacate the final judgment. After the trial court denied the motion, Aberman sought reconsideration, attaching an affidavit, which was also denied. Aberman appealed.
Aberman argues on appeal that his due process rights were violated by Appellee's use of constructive service of process by publication and that Appellee failed to conduct a diligent search prior to resorting to constructive service. But Aberman did not contest the trial court's jurisdiction below or the use of constructive service. Generally, a defendant wishing to contest personal jurisdiction "must do so in the first step taken in the case or the issue is waived." Century-Nat'l Ins. Co. v. Frantz , 320 So. 3d 929, 930 (Fla. 2d DCA 2021) ; see also Caldwell v. Caldwell , 921 So. 2d 759, 760 (Fla. 1st DCA 2006) (recognizing that "[b]y entering a general appearance without contesting personal jurisdiction, [the defendant] waived this defense"); Bay City Mgmt., Inc. v. Henderson , 531 So. 2d 1013, 1016 (Fla. 1st DCA 1988) (same). Here, Aberman appeared and sought to have the judgment vacated based upon "being unaware" of the attempt to serve him by publication. He did not claim that constructive service was improper. Because Aberman did not move to quash service or make an issue of personal jurisdiction, he submitted himself to the jurisdiction of the trial court and waived any claim regarding defective or deficient service of process.
As for Aberman's argument that the trial court should have vacated the default judgment, we recognize the requirement for liberality in vacating defaults and that resolution on the merits is preferred. Allstate Ins. Co. v. Ladner , 740 So. 2d 42, 43 (Fla. 1st DCA 1999). But a trial court's ruling on a motion for relief from a default judgment is reviewed under the abuse of discretion standard. Bank of Am., N.A. v. Lane , 76 So. 3d 1007, 1008 (Fla. 1st DCA 2011). And here, we find little basis for reversing the trial court decision because Aberman's motion to vacate the final default judgment did not set forth facts showing that his failure to respond was excusable. See Household Fin. Corp., III v. Mitchell , 51 So. 3d 1238, 1241 (Fla. 1st DCA 2011) (holding that "[a] party moving to set aside a default must show that the failure to file a timely responsive pleading was due to excusable neglect, that there is a meritorious defense to the claim, and that the request for relief from default was made with reasonable diligence after it was discovered").
Although Aberman was diligent in moving to vacate the default final judgment and stated a meritorious defense in the answer, his motion to vacate the default judgment addressed his neglect to respond to the complaint only by saying that it "was not due to gross negligence but due to [his] being unaware that this action had been served by publication." This terse explanation for not responding to the complaint gives us no cause to conclude that the trial court abused its discretion by denying Aberman's motion to vacate the final default judgment. See Williams v. Fernandez , 335 So. 3d 194, 197 (Fla. 2d DCA 2022) (noting that "a general assertion, without more factual development, is insufficient to establish excusable neglect"); Cent. Adjustment Bureau, Inc. v. Sahlgren , 492 So. 2d 1184, 1186 (Fla. 1st DCA 1986) (Ervin, J. dissenting) (collecting cases providing more extensive factual details underlying excusable neglect); Abray Constr. Co. v. Star Swimming Pools, Inc ., 426 So. 2d 1046, 1047 (Fla. 2d DCA 1983) (requiring a sworn motion or affidavit "setting forth facts to support" a claim that a party's failure to respond was excusable).
AFFIRMED .
Rowe, C.J., and Lewis, J., concur.