22 Fla. L. Weekly Supp. 853b
Online Reference: FLWSUPP 2207LOUIInsurance — Arbitration — Motion to vacate final judgment on arbitrator’s decision and allow trial de novo is denied where motion was not made under oath — Even if motion had been properly made under oath, it does not establish that plaintiff, who waited more than one month after receipt of final judgment to file motion to vacate, acted diligently in seeking relief
POMPANO SPINE CENTER, LLC (a/a/o Merny Louis), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-572 COCE (53). January 14, 2015. Robert W. Lee, Judge. Counsel: Christopher Aguirre, Miami, for Plaintiff. Siona R. Horowitz, Plantation, for Defendant.
ORDER DENYING PLAINTIFF’S AMENDED MOTION FOR TRIAL DE NOVO AND MOTION TO SET ASIDE FINAL JUDGMENT
THIS CAUSE came before the Court for consideration of the Plaintiff’s Amended Motion for Trial de Novo and Motion to Set Aside Final Judgment, and the Court’s having reviewed the Motion and the relevant legal authorities; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
On December 10, 2014, this Court entered and served its Final Judgment on Arbitrator’s Decision in Favor of Defendant. On December 16, 2014, the Defendant served is Motion to Tax Attorney’s Fees and Costs. On January 13, 2015, the Plaintiff served its Amended Motion for Trial de Novo and Motion to Set Aside Final Judgment. The Plaintiff claims that “due to excusable neglect, Plaintiff’s counsel never received notice of the arbitration decision in order to file a timely Motion for Trial de Novo. A failure by the office personnel responsible for receiving the mail created a circumstance where the decision was filed in the Plaintiff’s case file prior to it being provided to the assigned attorney for review.” The Plaintiff fails to offer any explanation as to why it did not respond promptly to its receipt of the Final Judgment, which was provided directly by the Court, and the Motion to Tax Attorney’s Fees and Costs, which was served by defense counsel.
Unfortunately for the Plaintiff, the Court finds that it is not entitled to the relief it is seeking. To prevail on a motion to vacate, the Plaintiff must establish that the failure to act in this cause is due to “excusable neglect”; and that it has acted with due diligence in moving to set aside the default within a reasonable time. See Credit General Ins. Co. v. Thomas, 515 So.2d 336, 337 (Fla. 3d DCA 1987). Additionally, a motion to vacate must be made under oath. See Dodrill v. Infe, Inc., 837 So.2d 1187, 1187 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D558d]. Because the Plaintiff did not submit its motion under oath or with supporting affidavit, the Motion should be summarily denied.
However, even had the Plaintiff properly submitted its Motion under oath, it would still not be entitled to relief, because it did not act diligently in seeking relief. See Airport Centre, Inc. v. Ugarte, 91 So.3d 936, 937 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D1655a] (delay of more than one month between discovery of the default and any effort to vacate default was not due diligence); Bayview Tower Condominium Association, Inc. v. Schweizer, 475 So.2d 982, 983 (Fla. 3d DCA 1985) (30-day delay too late); 32A Fla. Jur. 2d. Judgment & Decrees §287 (2003) (more than 20-day delay too late). Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s Amended Motion for Trial de Novo and Motion to Set Aside Final Judgment is hereby DENIED.
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