Suing nursing homes or assisted living facilities for abuse or neglect can be a frustrating task. These facilities, with their shell companies and hidden ownership structures, are familiar with playing games to maximize their bottom line by underfunding and understaffing their facilities. Sadly, sometimes their legal tactics are no different, and can involve threats and other dirty practices to discourage lawsuits. One remedy is to seek a default order.
What is a default in the state of Florida?
While rare, sometimes a facility will neglect to respond to a lawsuit, in the hopes that the plaintiff will drop the case. Thankfully, courts in the state of Florida have allowed for different methods to ensure justice for parties if their opponent refuses to engage in a lawsuit. In general, if a party shirks their duty to respond to a lawsuit, a default can be entered against them.
“A default admits every cause of action that is sufficiently well-pled to properly invoke the jurisdiction of the court and to give due process notice to the party against whom relief is sought.” Bowman v. Kingsland Development, Inc., 432 So.2d 660, 662–63 (Fla. 5th DCA 1983).
What is the difference between a default issued by a clerk of court and a default issued by the court?
The Florida Rules of Civil Procedure split defaults into two categories: those that may be entered by the Clerk and those that can only be entered by the Court. Under FRCP Rule 1.500(a), when the opposing part has “failed to file or serve any document in the action”, the party seeking relief may have the clerk enter a default against the other party. In contrast, under FCRP Rule 1.500(b), the party seeking relief must send notice of the application of default to the opposing party when the opposing party has filed “any paper” in the case. See EGF Tampa Associates v. Edgar V. Bohlen, 532 So.2d at 1321–2.
The reason for this distinction underlies the purpose of default provisions in the State of Florida. The purpose of the entry of a default is to prevent a slow defendant from delaying the claim of a plaintiff – it is not to provide an advantage to a plaintiff so that they can prevail on a case by avoiding an argument on the merits. Therefore, “any paper” filed on behalf of the opposing party illustrates some level of engagement and then requires further notice and a hearing by a court under FRCP 1.500(b) prior to an entry of default.
Is there relief from an entry of default in Florida?
If a default is entered against a party, it is possible to have that default set aside under FRCP 1.500(d). In order to get relief, the defaulting party must show that 1) the failure to respond was due to excusable neglect, 2) that the defaulting party had a meritorious defense to the action and 3) the defaulting party acted with due diligence in moving to set aside the default. If the moving party fails one of those three requirements, the motion to set aside a default judgment will fail. Lehner v. Durso, 816 So.2d 1171, 1173 (Fla. 4th DCA 2002).
Excusable neglect arises when “inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.” Elliott v. Aurora Loan Servs., LLC, 31 So.3d 304, 307 (Fla. 4th DCA 2010). Courts have found that illness or mental conditions can satisfy this requirement if they clearly interfere with a party’s ability to take action in the case. Paul v. Wells Fargo Bank, N.A., 68 So.3d 979, 985 (Fla. 2d DCA 2011);
Moving for a Final Judgment
After a default is entered, whether by the court or by the clerk, the non-defaulting party has to move for a final judgment. During the final judgment hearing, the defaulting party is limited in what they can contest.
“… once the default is established, defendant has no further standing to contest the factual allegations of the plaintiff’s claim for relief. However, even after default it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” Wiseman v. Stocks, 527 So. 2d 904, 906 (Fla. Dist. Ct. App. 1988).
This means that any facts pleaded in the complaint are taken as true, and only questions of law can be challenged. For example, if a complaint fails to state a cause of action (e.g. listing that a nursing home resident suffered falls, bedsores, malnutrition, etc. without alleging that the injuries were due to negligence on behalf of the facility and facility owners and agents), a court can consider whether there is a viable question of law in the complaint. In contrast, if the complaint alleges a fall on a certain date and the defaulted party has evidence that it did not occur, it still must be accepted as fact.
Liquidated vs. Unliquidated Damages
Liquidated damages are those that can be determined “with exactness from the cause of action as pleaded”. Kotlyar v. Metro. Cas. Ins. Co., 192 So. 3d 562, 563 (Fla. Dist. Ct. App. 2016). As an example, if there was a contract where failure resulted in a payment of a specific amount of money, that amount would be considered liquidated damages. Hartford Fire Ins. Co. v. Controltec, Inc., 561 So.2d 1334 (Fla. 5th DCA 1990). In contrast, unliquidated damages are those where a court has to consider testimony or evidence upon which to base a value judgment. Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 662 (Fla. 5th DCA 1983). Damages for personal injury, pain and suffering and a loss of enjoyment of life all are considered unliquidated. Kotlyar v. Metro. Cas. Ins. Co., 192 So.3d 562, 565–66 (Fla. 4th DCA 2016).
The distinction between liquidated and unliquidated damages is important because unliquidated damages require notice to the defaulted party before a final judgment awarding damages can be given. Calder v. McNess, 427 So. 2d 393, 394 (Fla. Dist. Ct. App. 1983). This was changed upon the introduction of FRCP 1.440(c) – in the past neither required further notice. See B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So. 2d 318, 320 (Fla. Dist. Ct. App. 1980) which discusses the overturning of the Stevenson v. Arnold standard.
Conclusion
If a defendant Nursing Home does not respond, and an order of default is issued against them, you are in a good position. Depending on who issued the default and what type of damages are alleged, you may not even need to have a trial.
If you or a loved one suffered negligence, abuse or neglect at a long-term care facility, nursing home or assisted living facility, it is important to reach out to attorneys who focus primarily on elder law litigation.
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