MAGNIFICENT TWELVE, INC., APPELLANT,
v.
EUGENE WALKER, APPELLEE
PER CURIAM.
The record reflects that the appellant diligently moved to vacate the default and default judgment entered against it and that the complaint against the appellant wholly fails to state a cause of action. As the appellee concedes, a default judgment entered upon a complaint which wholly fails to state a cause of action must be vacated upon a diligently filed motion to vacate even without a showing of excusable neglect in failing to timely answer the complaint. See Sunshine Security & Detective Agency v. Wells Fargo Armored Services Corp., 496 So. 2d 246 (Fla. 3d DCA 1986); Fernandez-Aguiree v. Gall, 484 So. 2d 1286 (Fla. 3d DCA 1986). Therefore, we reverse the default and default judgment and remand the case for further proceedings.
Reversed and remanded.
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Morton L. Ginsberg & MLG Props., Inc. v. Lennar Fla. Holdings, 645 So. 2d 490 (Fla. 3d DCA 1994)…default judgment will be set aside where the complaint upon which the default was granted fails, on its face, to set forth a viable cause of action. See Becerra v. Equity Imports, 551 So. 2d 486 (Fla. 3d DCA 1989); Magnificent Twelve Inc. v. Walker, 522 So. 2d 1031 (Fla. 3d DCA 1988); Sunshine Security & Detective Agency v. Wells Fargo, 496 So. 2d 246 (Fla. 3d DCA 1986); Fernandez-Aguirre v. Gall, 484 So. 2d 1286 (Fla. 3d DCA 1986). As this court explained in Becerra: A default admits liability as claimed in…
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Becerra v. Equity Imports, Inc., 551 So. 2d 486 (Fla. 3d DCA 1989)…motion to [*489] set aside a default judgment requires no allegations or showing of excusable neglect where the basis for the motion is that the allegations in the complaint do not entitle the plaintiff to relief. Magnificent Twelve, Inc. v. Walker, 522 So. 2d 1031 (Fla. 3d DCA 1988).1 Denial of the motion to set aside the judgment, as to the damage award of $28,-000 plus costs on the causes of action for breach of an oral contract, fraud, and breach of a fiduciary duty, is affirmed; denial of the motion, as…
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Sec. Bank, N.A. v. Bellsouth Advertising & Publ'g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)…[A] motion to set aside a default judgment requires no allegations or showing of excusable neglect where the basis for the motion is that the allegations in the complaint do not entitle the plaintiff to relief. Magnificent Twelve, Inc., v. Walker, 522 So. 2d 1031 (Fla. 3d DCA 1988). Becerra v. Equity Imports, Inc., 551 So. 2d at 488-89 (footnote and citations omitted; emphasis added). Here BellSouth was granted “ ‘affirmative relief ... that is not supported by ... substantive law applicable to the pleadin…
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- Sunshine Sec. & Detective Agency v. Wells Fargo Armored Servs. Corp., 496 So. 2d 246 (Fla. 3d DCA 1986)
- Fernandez-Aguirre v. Lilly Gall, 484 So. 2d 1286 (Fla. 3d DCA 1986)