TPM CONSTRUCTORS, INC., APPELLANT,
v.
TWIN COAST TITLE, INC., A FLORIDA CORPORATION, APPELLEE
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TPM Constructors appeals the trial court's denial of its motion to vacate a default judgment entered in favor of Twin Coast Title for breach of contract. The Fifth District Court of Appeal reversed, finding the trial court's order was devoid of explanation and may have been based on an obsolete legal requirement.
The court reversed and remanded, holding that the requirement for a party to offer to go to trial immediately is obsolete under current Florida procedure. A motion to vacate a default judgment requires only a showing of a meritorious defense and a legal excuse for failure to comply with the rules.
[1] A trial court may grant a motion to vacate a default judgment if the movant demonstrates both a meritorious defense and a legal excuse for failing to comply with court ru…
[2] A party moving to vacate a default judgment is no longer required to offer to go to trial immediately.
Previewing 2 of 5 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 trial court may properly grant a motion to vacate a default judgment where the movant establishes (1) a meritorious defense, and (2) a legal excuse for failure to comply with the rules.”
States the two-part test required to vacate a default judgment
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Join FLexlaw to unlock all legal intelligenceTwin Coast filed a breach of contract complaint against TPM on December 16, 1981. TPM failed to timely answer or serve pleadings, resulting in a defau…
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COBB, Judge.
On December 16, 1981, Twin Coast Title, Inc. (Twin Coast) filed a complaint against TPM Constructors, Inc. (TPM), alleging breach of contract.1 On February 8, 1982, the Clerk of the Court entered a default pursuant to Twin Coast’s motion for default based on TPM’s failure to timely answer or serve any pleadings. On February 17,1982, the lower court, upon motion, then entered a default judgment in favor of Twin Coast. The court denied, without explanation, TPM’s motion to vacate the default judgment filed on March 15, 1982, and TPM appealed therefrom.2 The issue in this case is whether the trial court erred by denying TPM’s motion to vacate the default judgment. For the reasons stated below, we reverse and remand for reconsideration of the motion.
A trial court may properly grant a motion to vacate a default judgment where the movant establishes (1) a meritorious defense, and (2) a legal excuse for failure to comply with the rules. The absence of either of these elements precludes the setting aside of a default judgment. B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980). TPM offered evidence of these requisites to the trial court through affidavits, an answer and affirmative defenses. In its written response to the motion to vacate and during the hearing, Twin Coast argued that TPM’s motion was insufficient as a matter of law because the motion failed to contain an offer to go to trial at once on the material issues.3 Appellant points out, and Twin Coast concedes in its brief, that a party moving to vacate a default judgment is no longer required to offer to go to trial immediately. This requirement is obsolete because of the present method of setting actions for trial. Fla.R.Civ.Pr. 1.440 (1980); Trawick Florida Practice & Procedure § 25-3 (1981 ed.).
A showing of gross abuse of discretion is necessary on appeal to justify reversal of a lower court’s ruling on a motion to vacate a default judgment. Sterling Drugs Inc. v. Wright, 342 So. 2d 503 (Fla.1977). Here, the order denying the motion to vacate the default judgment is devoid of explanation. Hence, we cannot determine whether the lower court exercised its broad discretion or simply felt obligated to deny TPM’s motion based on Twin Coast’s misstatement of the current law. Therefore, we reverse ánd remand for reconsideration of the motion to vacate the default judgment without reference to TPM’s failure to allege its readiness to go to trial.
REVERSED and REMANDED with instructions.
SHARP, J., and SMITH, C. McFERRIN, III, Associate Judge, concur. . The parties had entered into a contract under which Twin Coast was to install resilient flooring and acoustic ceilings in a construction project on which TPM was the general contractor. . This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). An order denying a motion to vacate a default judgment is an appealable order under this rule as an order determining liability in favor of a party seeking affirmative relief. Doctors Hospital of Hollywood, Inc. v. Madison, 411 So. 2d 190 (Fla.1982).
. During the hearing on the motion to vacate, the following exchange took place:
TWIN COAST’S COUNSEL: One of the things off the bat that we observed about the motion is that it’s insufficient as a matter of law because they failed to offer to go to trial at once on the material issues and I cited three cases to that proposition. That is an essential requirement of the motion in order for it to be a viable motion.
THE COURT: The cases say that or the rule?
TWIN COAST’S COUNSEL: Yes, sir. Both.
Later in the hearing, the court voiced concern over whether TPM was required to allege it was ready to go to trial and Twin Coast re-emphasized its point.
Cases With Similar Vibessemantic neighbors from the corpus
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Kindle Trucking Co. v. Marmar Corp., 468 So. 2d 502 (Fla. 5th DCA 1985)…t establish (1) a meritorious defense and (2) a legal excuse for failure to comply with the rule. If the movant fails to establish either of those elements the default cannot be properly set aside. T.P.M. Constructors, Inc. v. Twin Coast Tile, Inc., 425 So. 2d 580 (Fla. 5th DCA 1982), rev. denied, 434 So. 2d 889 (Fla.1983); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980). One factor that the trial court may consider in determining whether the negligence was excusable is the…
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L.B.T. Corp. v. Camacho, 429 So. 2d 88 (Fla. 5th DCA 1983)…default judgment where the movant establishes a meritorious defense and a legal excuse for failure to comply with the rule. An absence of either precludes the setting aside of a default judgment. T.P.M. Constructors, Inc. v. Twin Coast Title, Inc., 425 So. 2d 580 (Fla. 5th DCA 1982); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980). A showing of gross abuse of discretion is necessary on appeal to justify reversal of a lower court’s ruling on a motion to vacate a default jud…
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Tire Kingdom, Inc. v. Bowman, 480 So. 2d 221 (Fla. 5th DCA 1985)…ous defense exists. Kindle Trucking Co. v. Marmar Corp., 468 So. 2d 502 (Fla. 5th DCA 1985); Fratus v. Fratus, 467 So. 2d 484 (Fla. 5th DCA 1985); L.B.T. Corp. v. Camacho, 429 So. 2d 88 (Fla. 5th DCA 1983); TPM Constructors, Inc. v. Twin Coast Tile, 425 So. 2d 580 (Fla. 5th DCA 1983). The court is vested with broad discretionary power in determining whether the facts constitute excusable neglect justifying the vacating of a default and a showing of a gross abuse of discretion is necessary on appeal to justify…
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
- B/G Amusements, Inc. v. Mystery FUN House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980)
- Doctor's Hosp. OF Hollywood, Inc. v. Hunter W. Madison, 411 So. 2d 190 (Fla. 1982)
- Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla. 1977)