FARMERS PRODUCTION CREDIT ASSOCIATION, APPELLANT,
v.
EMPERADOR SEAFOODS, INC., THOMAS F. FURTADO AND LAUREN W. FURTADO, APPELLEES
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Farmers Production Credit Association appealed a trial court's order setting aside a default judgment against Emperador Seafoods and the Furtados. The Fourth District reversed, holding that the defendants failed to demonstrate excusable neglect as required to set aside a default judgment.
The court held that defendants failed to establish excusable neglect as a prerequisite to setting aside the default judgment because they provided only bare allegations without supporting facts and offered no explanation at the hearing for their failure to respond to the complaint.
[1] A defendant seeking to set aside a default judgment must demonstrate excusable neglect in responding to the action, due diligence in seeking relief after learning of the…
[2] Excusable neglect is a prerequisite for setting aside a final judgment entered after a default.
Previewing 2 of 4 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“A defendant is entitled to relief from a default judgment if he can demonstrate that his neglect to respond to the action was excusable, that he used due diligence in seeking relief upon learning of the default and that he had a meritorious defense.”
Establishes the three-part test for vacating a default judgment under Florida law.
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Join FLexlaw to unlock all legal intelligenceThe defendants were served with a complaint but failed to respond, resulting in entry of a default judgment. When defendants moved to set aside the ju…
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HERSEY, Judge.
This is a timely appeal pursuant to Rule 9.130(a)(5), Florida Rules of Appellate Procedure, from a non-final order setting aside a final judgment entered after default.
A defendant is entitled to relief from a default judgment if he can demonstrate that his neglect to respond to the action was excusable, that he used due diligence in seeking relief upon learning of the default and that he had a meritorious defense. County National Bank of North Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981). Excusable neglect is a necessary prerequisite to setting aside a final judgment entered after default. Atlantic Bank of West Jacksonville v. Washington, 360 So. 2d 1145 (Fla. 1st DCA 1978); Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978).
Here the record reflects that appel-lees were served with the complaint but failed to respond and therefore the trial court entered a judgment of default. Ap-pellees’ motion to set aside the final judgment contains only a bare allegation that failure to answer the complaint was based upon mistake, inadvertence and excusable neglect. No supporting facts were alleged. Further, at the hearing on the motion to set aside final judgment, appellees offered no reason or excuse for their failure to respond. Rather, the hearing was devoted almost entirely to appellees’ alleged meritorious defense. Even the affidavit submitted by appellees after the hearing contains no facts demonstrating that the failure to answer the complaint was excusable.
We therefore reverse and remand for reinstatement of the final judgment.
REVERSED and REMANDED.
ANSTEAD and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Glenna Somero and Robert Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985)…1135 (Fla. 3d DCA 1982). A mere allegation that failure to act resulted from excusable neglect without any factual basis being given is an insufficient basis for setting aside a default. Farmers Production Credit Ass’n v. Emperador Seafoods, Inc., 416 So. 2d 889 (Fla. 4th DCA 1982). Finally, a bare allegation that default resulted from misfiling or misplacing a complaint did not furnish a basis for reversal of the trial court’s refusal to set aside a default where it also appeared that the default status h…
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Broward Cnty. v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983)…ovant must demonstrate that (1) the neglect is excusable, (2) there is a meritorious defense and (3) there has been an exercise of due diligence to seek relief upon learning of the default. Farmers Production Credit Ass’n v. Emperador Seafood, Inc., 416 So. 2d 889 (Fla. 4th DCA 1982). In our view, all three elements were satisfied in the case at bar. Although each case must be evaluated on its own facts, clerical or secretarial error has usually been found to constitute excusable neglect where there has been…
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Gordon v. Kearns, 430 So. 2d 959 (Fla. 3d DCA 1983)…efault judgment where the motion was totally devoid of factual allegations supporting the claimed mistake, inadvertence, excusable neglect and fraud. Fla.R.Civ.P. 1.500(d), 1.540(b); Farmers Production Credit Association v. Emperador Seafoods, Inc., 416 So. 2d 889 (Fla. 4th DCA 1982). Affirmed.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cnty. Nat'l Bank OF N. Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981)
- State v. Camper, 356 So. 2d 1329 (Fla. 4th DCA 1978)
- Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978)
- Atl. Bank OF W. Jacksonville v. Washington, 360 So. 2d 1145 (Fla. 1st DCA 1978)