Associate Attorney
In Elnenaey v. Elkadi, the Second District Court of Appeal addressed two procedural issues arising from a final judgment of injunction for protection against domestic violence. While the opinion itself is relatively short, it contains a useful reminder for anyone litigating motions to vacate defaults or final judgments: allegations of excusable neglect must be supported by sworn evidence.
The case arose after a final judgment of injunction for protection against domestic violence was entered against the appellant. Following entry of that judgment, the appellant moved to vacate. The problem, however, was that the motion was not supported by an affidavit or any other sworn statement explaining the basis for the requested relief. The trial court denied the motion, and the appellant appealed both the underlying injunction and the order denying the motion to vacate.
The Second DCA first dismissed the appeal of the final judgment as untimely, explaining that a motion brought under Florida Family Law Rule of Procedure 12.540 does not toll rendition of a final judgment or extend the time for filing an appeal. More relevant for present purposes, however, was the court’s affirmance of the order denying the motion to vacate.
The court reiterated a well-established principle of Florida law: “[e]xcusable neglect must be proven by sworn statements or affidavits” and “[u]nsworn assertions of excusable neglect are insufficient.” Because the appellant failed to support his motion with an affidavit or other sworn evidence, the trial court properly denied the requested relief.
Practice pointers
- A motion to vacate generally requires proof of three elements: excusable neglect, due diligence, and a meritorious defense.
- Each element is independently required; failure to establish any one of them is fatal to the motion.
- Excusable neglect must be supported by an affidavit or other sworn testimony.
- Unsworn allegations in the motion itself are not sufficient.
- A Rule 12.540 motion does not toll rendition of a final judgment for purposes of appeal.
Takeaway: Anyone who has litigated motions to vacate knows they can be fairly comprehensive undertakings, particularly when a final judgment is involved. This case serves as a good reminder that no matter how strong the alleged defense may be, or how diligent the moving party was in seeking relief, the motion will likely fail if excusable neglect is not supported by a sworn affidavit or other competent evidence. Whether you are pursuing or opposing a motion to vacate, don’t overlook the evidentiary component of the excusable neglect prong—otherwise a significant amount of work can be undone by a simple procedural omission.
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