MICHAEL BURBANK, APPELLANT,
v.
THE SOUTHLAND CORPORATION, APPELLEE
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Michael Burbank sued The Southland Corporation for malicious prosecution. After a default was entered against the defendant for failing to timely respond, the trial court granted defendant's motion to vacate the default. The appellate court affirmed, holding that where a defendant demonstrates both excusable neglect and a meritorious defense, the trial court does not abuse its discretion in setting aside a default.
The court affirmed the trial court's decision to vacate the default. Where a defendant satisfies both requirements under Fla.R.Civ.P. 1.540(b)—excusable neglect or inadvertence and a showing of a meritorious defense—the trial judge does not abuse discretion in setting aside the default, and only a showing of gross abuse of discretion warrants reversal on appeal.
[1] A trial court's decision to vacate a default judgment will be affirmed on appeal absent a gross abuse of discretion.
[2] A default is intended to speed litigation, not to provide a plaintiff with an advantage to avoid a defense.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.”
Establishes the proper purpose of default judgments and the principle that defaults should not be used to prevent defendants from presenting meritorious defenses.
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Join FLexlaw to unlock all legal intelligenceBurbank filed a malicious prosecution complaint against Southland Corporation. The defendant failed to file a responsive pleading within 20 days, and …
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ERVIN, Judge.
Appellant filed his complaint alleging malicious prosecution against the defendant corporation, and when no responsive pleading was filed within 20 days, a default was entered by the clerk. The defendant, 16 days after default had been entered, filed a motion to set aside the default and to file an answer, attached an affidavit of the claim supervisor for defendant’s liability carrier setting forth grounds for excusable neglect under Fla.R.Civ.P. 1.540(b), and filed an answer to the complaint. The answer moved to dismiss the complaint for failing to show there was no termination of the original proceeding in favor of the plaintiff, and as a second defense, denied any malicious act by any employee or agent of the defendant. The trial court granted defendant’s motion to vacate the default and appellant brings this interlocutory appeal.
We affirm on the authority of North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). That opinion reversed the District Court and reinstated the trial judge’s setting aside of the default, holding in part: (1) The defense’s assertion that the defendant hospital was not negligent in its treatment of the plaintiff is a sufficient allegation of a meritorious defense. (2) A mere abuse of the trial judge’s discretion is not a sufficient basis for reversal of his ruling on the motion to vacate. A showing of gross abuse of discretion is necessary on appeal. (3) Coggin v. Barfield, 150 Fla. 551, 8 So. 2d 9 (1942), is quoted:
“The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.”
(4) Courts should not stand upon strict rules of practice and should keep the door open a long time to a defendant who seems to be honest and striving to get in what he believes to be a good defense. (5) A headnote in Waterson v. Seat and Crawford, 10 Fla. 326, is cited with approval:
“Whether a default should be opened, must depend on all the facts and circumstances connected with the case." If the party be guilty of gross negligence, the default will not be opened.”
The showing of inadvertence and excusable neglect here is not logically distinguish able from that in North Shore Hospital.
Further, there is a sufficient factual demonstration in defendant’s answer that defendant had a meritorious defense, so that Scott v. Premium Development, Inc., 328 So. 2d 557 (Fla. 1st DCA 1976) does not control. Had there been no answer filed with the motion to vacate default or allegations of a meritorious defense asserted in the affidavit, then Scott would have required reversal in this case. See also Metcalf v. Langston, 296 So. 2d 81 (Fla. 1st DCA 1974). Here, however, we cannot say there was a gross abuse of the trial judge's discretion.
The twin requirements of excusable neglect or inadvertence under Rule 1.540(b) and a showing of a meritorious defense having been satisfied, the trial judge’s vacation of the default is
AFFIRMED.
McCORD, Acting C. J., and MILLS, J., concur. . The claims supervisor stated he misread the date process was served on the carrier and forwarded the suit papers to defense counsel too late for a timely response to be filed. See also Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla.1977).
Cases With Similar Vibessemantic neighbors from the corpus
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Allen v. Wright, 350 So. 2d 111 (Fla. 1st DCA 1977)…, would constitute a meritorious defense. The problem, however, with his motion is that he must show both a meritorious defense and excusable neglect. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Burbank v. Southland Corporation, 345 So. 2d 1108 (Fla. 1st DCA 1977). Upon the record presented to us there is simply no way we can draw the reasonable conclusion that Graham’s motion to set aside the default demonstrated excusable neglect. If there is no question of coverage or of Integrity’s dut…
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Wien v. Quayside Realty, Inc., 462 So. 2d 569 (Fla. 3d DCA 1985)…ARTZ, Chief Judge. In the light cast by Florida’s established and salutary policy in favor of determining cases on their merits, Bland v. Viking Fire Protection, Inc. of the Southeast, 454 So. 2d 763 (Fla. 2d DCA 1984); Burbank v. Southland Corp., 345 So. 2d 1108 (Fla. 1st DCA 1977), it is clear that the trial court incorrectly refused to set aside a default and default judgment entered no more than forty days after the defendants had been served in Brooklyn, New York.1 The record shows that the filing of th…
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Sentry Indem. Co. v. Hendricks Enters., 371 So. 2d 1105 (Fla. 4th DCA 1979)…court’s discretion is necessary to reverse a ruling on a motion to vacate and set aside a default. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla.1977); Burbank v. Southland Corp., 345 So. 2d 1108 (Fla.1st DCA 1977); Chamberlin v. Mid-Century Insurance Co., 350 So. 2d 364 (Fla.2d DCA 1977). In the instant case the record reflects that the garnishee’s agent received the writ and motion therefore. After a few days he forwarded the writ to his h…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Coggin v. Barfield, 150 Fla. 551 (Fla. 1942)
- Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla. 1977)
- Metcalf v. Langston, 296 So. 2d 81 (Fla. 1st DCA 1974)
- Etienne v. Irvin, 45 Fla. L. Weekly D2032 (Fla. 3d DCA 2020)
- Waterson v. Seat and Crawford, 10 Fla. 326 (Fla. 1864)
- Scott v. Premium Dev., Inc., 328 So. 2d 557 (Fla. 1st DCA 1976)