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Filing # 145388734 E-Filed 03/09/2022 02:55:08 PM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.: 50-2020-CA-007534XXXXMB
TAYLOR BIBIAN, as Personal
Representative of the ESTATE OF
JAMES VINCENT ROTI, JR.
Plaintiff,
vs.
SHOMA AT ROYAL PALM
CONDOMINIUM ASSOCIATION,
INC., and SHARLENE MUNRO,
Individually
Defendants.
a
DEFENDANT, PHOENIX MANAGEMENT SERVICES, INC., UNOPPOSED
MOTION TO SET ASIDE CLER! DEFAULT
Defendant, PHOENIX MANAGEMENT SERVICES, INC., (hereinafter “Defendant”),
by and through its undersigned attorney and pursuant to Florida Rule of Civil Procedure
1.540(b), hereby files this Motion to Set Aside Clerk’s Default, and in support states as follows:
1. On or about August 20, 2020, Plaintiffs served their initial Complaint.
2. Following a Second Amended Complaint, Defendant, PHOENIX
MANAGEMENT SERVICES, INC., was properly served on December 7, 2021.
3. On February 21, 2022, Plaintiff’s filed a Motion for Default for failure to
tespond to Plaintiff's Second Amended Complaint. See Plaintiff's Motion for Default attached
hereto and incorporated as Exhibit “A”.
COLE, SCOTT & KISSANE, P.A.
1645 PALM BEACH LAKES BOULEVARD -2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 389-9200 - (561) 689-8977 FAX
*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 03/09/2022 02:55:08 PM ***CASE NO.: 50-2020-CA-007534XXXXMB
4. Through excusable neglect, a response to the Complaint was not timely filed.
5. On March 3, 2022, a Clerk’s Default was entered. See Clerk’s Default attached
hereto and incorporated as Exhibit “B”.
6. Upon being retained, the undersigned counsel immediately contacted Plaintiffs
counsel to discuss the default.
TH Plaintiff's counsel has agreed to vacate the Default which was entered.
8. Pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure, this
Honorable Court has sweeping authority to set aside a default because of excusable neglect.
ARGUMENT
Florida public policy favors the setting aside of defaults so controversies can be decided
upon the merits. See Lioyd’s Underwriters at London y. Ruby, Inc., 801 So. 2d 138, 139 (Fla.
4th DCA 2001) (‘Florida public policy favors the setting aside of defaults so that controversies
may be decided on the merits.”); Green Solutions Int’l, Inc. v. Gilligan, 807 So. 2d 693, 696
(Fla. 5th DCA 2001). Thus, if there is any “reasonable doubt in the matter [of vacating a
default], it should be resolved in favor of granting the application and allowing a trial upon the
merits.” Lloyd’s Underwriter’s at London v. Ruby, Inc., 801 So. 2d at 139 (citing N. Shore
Hosp., Inc. v. Barber, 143 So. 2d 849, 853 (Fla. 1962)).
When determining whether to set aside a default, the court must determine: (1) whether
the defendant has demonstrated excusable neglect in failing to respond; (2) whether the
defendant has demonstrated a meritorious defense; and (3) whether the defendant subsequent
to learning of the default, has demonstrated due diligence in seeking relief. Mullne v. Sea-Tech
Construction, Inc., 84 So. 3d 1247, 1249 (citing Halpern v. Houser, 949 So. 2d 1155, 1157CASE NO.: 50-2020-CA-007534XXXXMB
(Fla. 4th DCA 2007)). A court will find excusable neglect where inaction is a result of “clerical
or secretarial error, a reasonable misunderstanding, a system gone awry or any other of the
foibles to which human error is heir.” Somero v. Hendry Gen. Hosp., 467 So. 2d 1103, 1105
(Fla. 4th DCA 1985). A meritorious defense is established by attaching a proposed answer that
“sets out in detail a number of affirmative defenses” to the motion to set aside. Fortune Ins. Co.
v. Sanchez, 490 So. 2d 249 (Fla. 3d DCA 1986). Due diligence is a test or reasonableness. Elliot
vy. Aurora Loan Services, LLC. 31 So. 3d 304, 308 (Fla. 4th DCA 2010). A lack of due diligence
is shown by the delay in time before filing a motion to set aside, but the reasonable time to file
the motion depends on the circumstances of the case. Franklin v. Franklin, 573 So. 2d 401 (Fla.
3d DCA 1991) (finding that there was no lack of due diligence under the circumstances when
a motion to vacate was filed seven months after the default judgment was entered). Thus, the
Court must evaluate both the extent of the delay and the reasons for the delay. /'Jorida Eurocars,
Inc. v. Pecorak, 110 So. 3d 516 (Fla. 4th DCA 2013).
In light of the foregoing reasons, Defendant requests that this Honorable Court set aside
the Default entered by the Clerk. The setting aside of the Default will not be prejudicial to
Plaintiff based on the aforementioned information. Furthermore, Florida Courts have held that
when a plaintiff knows that a defendant intended to defend a lawsuit because a default was not
due to the defendant’s gross negligence, a default should be set aside. Serrano v. Ayala, 728
So. 2d 1231 (Fla. 3d DCA 1999) citing Levante v. Corallo, 688 So. 2d 427 (Fla. 2d DCA 1997);
Ole, Inc. v. Yariv, 566 So. 2d 812 (Fla. 3d DCA 1990). Therefore, it is well settled that the
Default should be set aside, and this matter should be resolved on its merits.CASE NO.: 50-2020-CA-007534XXXXMB
WHEREFORE, the Defendant, PHOENIX MANAGEMENT SERVICES, INC.,
respectfully requests this Honorable Court enter an Order setting aside default against
Defendant and any other relief deemed appropriate by this Honorable Court.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 9" day of March, 2022, a true and correct copy of
the foregoing was filed with the Clerk of Palm Beach County Court by using the Florida Courts
e-Filing Portal, which will send an automatic e-mail message to the following parties registered
with the e-Filing Portal system: Jonathan Levy, Esq., Rosenthal, Levy, Simon & Sosa, Attorney
for Plaintiff, 1401 Forum Way, Sixth Floor, West Palm Beach, FL 33401,
jlevy@rosenthallevy.com, eleonard@rosenthallevy.com and Damian M. Fletcher, Esq. and
Haldon L. Greenburg, Esq., Tyson & Mendes LLP, Attorney for Defendant, 101 NE 3”
Avenue, Suite 1500, Ft. Lauderdale, FL 33301, dfletcher@tysonmendes.com,
greenburg@tysonmendes.com, and dwint@tysonmendes.com.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendants, PHOENIX
MANAGEMENT SERVICES, INC.
Esperante Building
222 Lakeview Avenue, Suite 120
West Palm Beach, Florida 33401
Telephone (561) 383-9251
Facsimile (561) 683-8977
Primary e-mail: sherry.schwartz@csklegal.com
Secondary e-mail: david. weigerjr@csklegal.com
Altemate e-mail: jacklyn.vazquez@csklegal.com
BY: David A. Weiger, Jr.
SHERRY M. SCHWARTZ
Florida Bar No.: 557633
DAVID A. WEIGER, JR.
Florida Bar No.: 1028568
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Filing # 145388734 E-Filed 03/09/2022 02:55:08 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 50-2020-CA-007534XXXXMB TAYLOR BIBIAN, as Personal Representative of the ESTATE OF JAMES VINCENT ROTI, JR. Plaintiff, vs. SHOMA AT ROYAL PALM CONDOMINIUM ASSOCIATION, INC., and SHARLENE MUNRO, Individually Defendants. a DEFENDANT, PHOENIX MANAGEMENT SERVICES, INC., UNOPPOSED MOTION TO SET ASIDE CLER! DEFAULT Defendant, PHOENIX MANAGEMENT SERVICES, INC., (hereinafter “Defendant”), by and through its undersigned attorney and pursuant to Florida Rule of Civil Procedure 1.540(b), hereby files this Motion to Set Aside Clerk’s Default, and in support states as follows: 1. On or about August 20, 2020, Plaintiffs served their initial Complaint. 2. Following a Second Amended Complaint, Defendant, PHOENIX MANAGEMENT SERVICES, INC., was properly served on December 7, 2021. 3. On February 21, 2022, Plaintiff’s filed a Motion for Default for failure to tespond to Plaintiff's Second Amended Complaint. See Plaintiff's Motion for Default attached hereto and incorporated as Exhibit “A”. COLE, SCOTT & KISSANE, P.A. 1645 PALM BEACH LAKES BOULEVARD -2ND FLOOR - WEST PALM BEACH, FLORIDA 33401 (561) 389-9200 - (561) 689-8977 FAX *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 03/09/2022 02:55:08 PM ***CASE NO.: 50-2020-CA-007534XXXXMB 4. Through excusable neglect, a response to the Complaint was not timely filed. 5. On March 3, 2022, a Clerk’s Default was entered. See Clerk’s Default attached hereto and incorporated as Exhibit “B”. 6. Upon being retained, the undersigned counsel immediately contacted Plaintiffs counsel to discuss the default. TH Plaintiff's counsel has agreed to vacate the Default which was entered. 8. Pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure, this Honorable Court has sweeping authority to set aside a default because of excusable neglect. ARGUMENT Florida public policy favors the setting aside of defaults so controversies can be decided upon the merits. See Lioyd’s Underwriters at London y. Ruby, Inc., 801 So. 2d 138, 139 (Fla. 4th DCA 2001) (‘Florida public policy favors the setting aside of defaults so that controversies may be decided on the merits.”); Green Solutions Int’l, Inc. v. Gilligan, 807 So. 2d 693, 696 (Fla. 5th DCA 2001). Thus, if there is any “reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits.” Lloyd’s Underwriter’s at London v. Ruby, Inc., 801 So. 2d at 139 (citing N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849, 853 (Fla. 1962)). When determining whether to set aside a default, the court must determine: (1) whether the defendant has demonstrated excusable neglect in failing to respond; (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant subsequent to learning of the default, has demonstrated due diligence in seeking relief. Mullne v. Sea-Tech Construction, Inc., 84 So. 3d 1247, 1249 (citing Halpern v. Houser, 949 So. 2d 1155, 1157CASE NO.: 50-2020-CA-007534XXXXMB (Fla. 4th DCA 2007)). A court will find excusable neglect where inaction is a result of “clerical or secretarial error, a reasonable misunderstanding, a system gone awry or any other of the foibles to which human error is heir.” Somero v. Hendry Gen. Hosp., 467 So. 2d 1103, 1105 (Fla. 4th DCA 1985). A meritorious defense is established by attaching a proposed answer that “sets out in detail a number of affirmative defenses” to the motion to set aside. Fortune Ins. Co. v. Sanchez, 490 So. 2d 249 (Fla. 3d DCA 1986). Due diligence is a test or reasonableness. Elliot vy. Aurora Loan Services, LLC. 31 So. 3d 304, 308 (Fla. 4th DCA 2010). A lack of due diligence is shown by the delay in time before filing a motion to set aside, but the reasonable time to file the motion depends on the circumstances of the case. Franklin v. Franklin, 573 So. 2d 401 (Fla. 3d DCA 1991) (finding that there was no lack of due diligence under the circumstances when a motion to vacate was filed seven months after the default judgment was entered). Thus, the Court must evaluate both the extent of the delay and the reasons for the delay. /'Jorida Eurocars, Inc. v. Pecorak, 110 So. 3d 516 (Fla. 4th DCA 2013). In light of the foregoing reasons, Defendant requests that this Honorable Court set aside the Default entered by the Clerk. The setting aside of the Default will not be prejudicial to Plaintiff based on the aforementioned information. Furthermore, Florida Courts have held that when a plaintiff knows that a defendant intended to defend a lawsuit because a default was not due to the defendant’s gross negligence, a default should be set aside. Serrano v. Ayala, 728 So. 2d 1231 (Fla. 3d DCA 1999) citing Levante v. Corallo, 688 So. 2d 427 (Fla. 2d DCA 1997); Ole, Inc. v. Yariv, 566 So. 2d 812 (Fla. 3d DCA 1990). Therefore, it is well settled that the Default should be set aside, and this matter should be resolved on its merits.CASE NO.: 50-2020-CA-007534XXXXMB WHEREFORE, the Defendant, PHOENIX MANAGEMENT SERVICES, INC., respectfully requests this Honorable Court enter an Order setting aside default against Defendant and any other relief deemed appropriate by this Honorable Court. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 9" day of March, 2022, a true and correct copy of the foregoing was filed with the Clerk of Palm Beach County Court by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Jonathan Levy, Esq., Rosenthal, Levy, Simon & Sosa, Attorney for Plaintiff, 1401 Forum Way, Sixth Floor, West Palm Beach, FL 33401, jlevy@rosenthallevy.com, eleonard@rosenthallevy.com and Damian M. Fletcher, Esq. and Haldon L. Greenburg, Esq., Tyson & Mendes LLP, Attorney for Defendant, 101 NE 3” Avenue, Suite 1500, Ft. Lauderdale, FL 33301, dfletcher@tysonmendes.com, greenburg@tysonmendes.com, and dwint@tysonmendes.com. COLE, SCOTT & KISSANE, P.A. Counsel for Defendants, PHOENIX MANAGEMENT SERVICES, INC. Esperante Building 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 Telephone (561) 383-9251 Facsimile (561) 683-8977 Primary e-mail: sherry.schwartz@csklegal.com Secondary e-mail: david. weigerjr@csklegal.com Altemate e-mail: jacklyn.vazquez@csklegal.com BY: David A. Weiger, Jr. SHERRY M. SCHWARTZ Florida Bar No.: 557633 DAVID A. WEIGER, JR. Florida Bar No.: 1028568