JERRY'S PIZZA KING INTERNATIONAL, INC., A FLORIDA CORPORATION, D/B/A J. BURNS PIZZA SHOPPES, DAVID L. DEAN AND LAURA D. DEAN, APPELLANTS,
v.
PEOPLES ACCEPTANCE CORPORATION, APPELLEE
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Florida appellate court reversed denial of motion to vacate default judgment, holding that trial court must determine whether excusable neglect exists when a meritorious defense is shown.
A trial court must find both a meritorious defense and excusable neglect to vacate a default judgment, and absence of either precludes relief.
[1] To vacate a default judgment, a movant must establish both a meritorious defense and a legal excuse for failure to comply with procedural rules; absence of either element…
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Join FLexlaw to unlock all legal intelligence“The trial court may properly grant a motion to vacate a default judgment where the movant establishes a meritorious defense and a legal excuse for failure to comply with the rules. An absence of either precludes setting aside a default judgment.”
Statement of the legal standard for vacating default judgments
Jerry's Pizza King International, Inc. obtained a default judgment against it and moved to vacate the judgment, submitting a proposed answer with its …
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COBB, Judge.
Appellant, Jerry’s Pizza King International, Inc., appeals from an order denying its motion to vacate a default judgment. In the order, the trial court stated:
After having heard arguments of counsel and having specifically considered the questions of excusable neglect and meritorious defense, I hereby find that no meritorious defense is exhibited by the documents and pleadings in the court file, and it is thereupon ORDERED and AD JUDGED that the Defendants’ motion to set aside the default judgment be and the same is hereby DENIED.
The trial court may properly grant a motion to vacate a default judgment where the movant establishes a meritorious defense and a legal excuse for failure to comply with the rules. An absence of either precludes setting aside a default judgment. L.B.T. Corp. v. Camacho, 429 So. 2d 88 (Fla. 5th DCA 1983); TPM Constructors, Inc. v. Twin Coast Title, Inc., 425 So. 2d 580 (Fla. 5th DCA 1982).
The trial judge based his denial on a lack of meritorious defense. This finding is incorrect, since such a defense is clearly evinced from the proposed answer filed with Jerry’s motion below. The trial court failed to make a finding on whether or not excusable neglect was present. This question is determinative of the instant case. If excusable neglect can be shown, the motion to vacate should be granted; if not, the denial was proper. Therefore, we reverse and remand for a determination by the trial court of whether excusable neglect is present.
REVERSED and REMANDED with instructions.
ORFINGER, C.J., and COWART, J., concur.
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Citator
Cited By
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Amex Int'l, Inc. v. Kunde, 722 So. 2d 909 (Fla. 5th DCA 1998)…COBB, J., dissenting. A party seeking to set aside a default has the burden in the trial court of establishing excusable neglect and the existence of a meritorious defense. Jerry’s Pizza King International v. Peoples Acceptance Corp., 435 So. 2d 393 (Fla. 5th DCA 1983). On appeal from the trial court’s ruling, reversal is proper only upon a showing of a gross abuse of discretion. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). The defendant presented the affidavit of its regi…
Authorities Cited
- TPM Constructors, Inc. v. Twin Coast Title, Inc., 425 So. 2d 580 (Fla. 5th DCA 1982)
- Herman v. Herman, 429 So. 2d 88 (Fla. 5th DCA 1983)
- L.B.T. Corp. v. Camacho, 429 So. 2d 88 (Fla. 5th DCA 1983)