11 Fla. L. Weekly Supp. 794c
Insurance — Default — Vacation — Denial — Excusable neglect for failure to appear at pretrial conference is marginal where attorney had three days notice of scheduling conflict yet did nothing but leave note on morning of conference instructing secretary to have another attorney attend and when secretary did not come to work that day no one arranged coverage — Motion — Sufficiency — Even if facts were sufficient to constitute excusable neglect, grant of unsworn motion without supporting affidavit would have been reversible abuse of discretion — Moreover, attempt to remedy insufficient motion by filing motion for rehearing 28 days later without explanation for the delay in moving for rehearing showed lack of due diligence — Order denying motion to vacate default and motion for rehearing affirmed
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. ISO DIAGNOSTICS, INC. a/a/o Caridad Rodriguez, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 03-1508 (11). Re: 02-8630 COCE (53). June 10, 2004. Barry E. Goldstein, Judge.
OPINION
The Appellant, United Automobile Insurance Company, seeks review of rulings of the trial court denying its motions to vacate a default entered against it for failure to appear at a pretrial conference and for rehearing of the aforementioned motion. The trial court based its ruling on the motion to vacate, on the legal insufficiency of the motion.
The Appellant’s alleged excusable neglect for failure to appear is marginal. According to the attorney’s own admissions, he had three days notice of his scheduling conflict and did nothing about it until the morning of the conference, when he left the file with a note on his secretary’s desk, although she was not there yet, instructing her to have another attorney attend the conference. Therefore, when she did not come to work that day, the file and note remained on the empty desk; no one arranged coverage for the hearing, no one appeared for the Appellant, and a default was entered against it. But, even if that scenario is sufficient to constitute excusable neglect, under Trans-World Realty Corporation-Plantation v. Realty World Corporation, 507 So.2d 1201 (Fla. 4th DCA 1987), granting the unsworn motion without a supporting affidavit would have been a reversible abuse of discretion. Eden Park Management, Inc. v. Zagorski, 821 So.2d 1263 (Fla. 4th DCA 2002).
The Appellant tried to remedy its filing of the unsworn motion without an affidavit by filing a motion for rehearing, waiting 28 days after the denial of the first motion. Although the time restrictions of Rule 1.530, Florida Rules of Civil Procedure, do not apply to motions for rehearing directed to interlocutory orders,1 whether to grant a motion for rehearing is within the sound discretion of the trial court. The motion was not filed for 28 days and there was no explanation for the Appellant’s lack of promptness in attempting to remedy its inadequate filing.
Taking the lead from the court in Techvend, Inc. v. The Phoenix Network, Inc.,2 this Court sought guidance from other rules of procedure (as well as the cases construing them), with similar theoretical underpinnings, to evaluate whether the motion was filed with appropriate diligence. Although, as already noted, the time limitations of Rule 1.530, Florida Rules of Civil Procedure, do not directly apply to an interlocutory order, this court took guidance from the fact that the Florida Supreme Court, by establishing the Rule, indicated that 10 days should be an adequate time to move for a rehearing. Also, in Techvend, Inc., the court proposed a 20 day rule of thumb for the time to file to vacate a default for failure to answer, based on the time for filing the answer to a complaint. Further, in Bayview Tower Condominium Association, Inc. v. Schweizer, 475 So.2d 982 (Fla. 3rd DCA 1985), the court found that waiting a month after learning of default to move to vacate it “showed a lack of due diligence.” Therefore, if viewed from the perspective of the filing of a motion for rehearing, the 28 days is untimely compared to one filed under 1.530, which must be filed within 10 days. Similarly, if viewed from the perspective of filing a second motion to vacate, the 28 days exceeds the Techvend, Inc. 20 day rule of thumb and almost equals the month in Schweizer, showing a lack of due diligence.
Accordingly, with a marginal excuse for its initial neglect, an unsworn and unsupported motion to vacate, a failure to explain a 28 day delay in seeking rehearing, and a lack of due diligence concerning the latter, the Appellant has failed to establish that the trial court abused its discretion in denying the belated motion.
It is
ORDERED AND ADJUDGED that: the Order under review is AFFIRMED.
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1A-1 Truck Rentals, Inc. v. Vilberg, 222 So.2d 442 (Fla. 3rd DCA 1969).
2Techvend, Inc. v. The Phoenix Network, Inc., 564 So.2d 1145 (Fla. 3rd DCA 1990).
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