SPRING VALLEY CLUB APARTMENTS, LTD., APPELLANT,
v.
VELMA NICHOLS, APPELLEE
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Spring Valley appeals the trial court's denial of its motion to set aside an interlocutory default. The court reversed, holding that the appellant's allegation of affirmative defenses of comparative negligence in its motion and supporting affidavit was sufficient to establish a meritorious defense.
Yes. An allegation of affirmative defenses such as comparative negligence in a motion to vacate an interlocutory default, accompanied by a supporting affidavit, is sufficient to demonstrate a meritorious defense. The trial court abused its discretion in denying the motion to vacate.
[1] An interlocutory default may be set aside upon a showing of a meritorious defense.
[2] A meritorious defense for the purpose of setting aside an interlocutory default can be established by a general denial and affirmative defenses, such as comparative negli…
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Join FLexlaw to unlock all legal intelligence“Such was sufficient to demonstrate a meritorious defense for purposes of setting aside a clerk's default.”
Establishes that allegation of affirmative defenses in the motion and affidavit meets the meritorious defense standard
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Join FLexlaw to unlock all legal intelligenceSpring Valley failed to timely respond to a complaint filed by Velma Nichols, resulting in a clerk's default. Spring Valley filed a motion to vacate t…
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PER CURIAM.
Spring Valley appeals the trial court’s denial of its motion to set aside an interlocutory default. The lower court denied relief upon finding that appellant failed to establish a meritorious defense. We reverse.
Appellant’s motion to vacate the clerk’s default alleged affirmative defenses of comparative negligence as did the accompanying affidavit filed by appellant’s counsel. Such was sufficient to demonstrate a meritorious defense for purposes of setting aside a clerk’s default. See North Shore Hosp., Inc. v. Barber, 143 So. 2d 849, 853 (Fla.1962) (holding that meritorious defense was demonstrated by general denial); Ponderosa, Inc. v. Stephens, 539 So. 2d 1162, 1164 (Fla. 2d DCA 1989) (reversing denial of motion to vacate interlocutory default and holding appellant’s unverified proposed answer containing general denial and affirmative defenses, including contributory and comparative negligence, established “meritorious defense sufficient for purposes of setting aside an interlocutory order of default”).
The trial court thus abused its discretion in denying appellant’s motion to vacate the interlocutory default. See Moore v. Powell, 480 So. 2d 137, 139 (Fla. 4th DCA 1985) (“It is true that a general denial is insufficient to establish a meritorious defense for the purpose of vacating a default following final judgment. A different rule pertains, however, to consideration of an interlocutory order of default where no final judgment has been entered.”), review denied, 492 So. 2d 1333 (Fla.1986); Bay Convalescent Center, Inc. v. Carroll, 352 So. 2d 900 (Fla. 1st DCA 1977), cert. dismissed, 364 So. 2d 881, 903 (Fla.1978).
MINER, BENTON and BROWNING, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Crews v. The Dania Bank, 352 So. 2d 900 (Fla. 4th DCA 1977)
- Godinez v. State, 480 So. 2d 137 (Fla. 3d DCA 1985)
- Crawley v. State, 539 So. 2d 1162 (Fla. 2d DCA 1989)
- Ponderosa, Inc. v. Stephens, 539 So. 2d 1162 (Fla. 2d DCA 1989)