ABRAY CONSTRUCTION COMPANY, INC., APPELLANT,
v.
STAR SWIMMING POOLS, INC., AND RICHARD FOBURG, APPELLEES
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Abray Construction obtained a default judgment against Star Swimming Pools and Richard Foburg for failure to respond to a complaint. The defendants moved to vacate the default based on excusable neglect and claimed a meritorious defense, but the trial court granted the motion. The appellate court reversed, holding that defendants failed to adequately establish the existence of a meritorious defense.
The court held that defendants failed to establish a meritorious defense because they merely alleged the conclusion of a meritorious defense without setting forth ultimate facts to support it. Since defendants did not sustain their burden of showing a meritorious defense, the motion to vacate should have been denied.
[1] A party seeking to vacate a default judgment must establish both a legal excuse for failure to comply with procedural rules and a meritorious defense.
[2] An allegation of a meritorious defense in an unsworn motion, without supporting facts, is insufficient to vacate a default judgment.
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Establishes the applicable standard requiring defendants to prove both excusable neglect and a meritorious defense to vacate a default.
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Join FLexlaw to unlock all legal intelligenceAbray Construction filed a complaint for damages against Star Swimming Pools and Richard Foburg. The defendants failed to respond within twenty days, …
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SCHOONOVER, Judge.
This is an interlocutory appeal from an order vacating a final judgment based upon a default. We reverse.
Appellant, Abray Construction Company, plaintiff below, filed a complaint for damages against the appellees, Star Swimming Pools, Inc. and Richard Foburg. The appel-lees failed to respond to the complaint within twenty days after service of process, and the appellant obtained a default from the clerk. Shortly thereafter a final judgment was entered against the appellees.
Five days later, the appellees filed an unsworn motion to vacate the default and judgment. The motion claimed excusable neglect and alleged that the defendants had a meritorious defense in the form of a substantial counterclaim against the appellant. It was accompanied by an affidavit which attempted to set forth the facts upon which the court could find excusable neglect.
Even though there is a long standing policy of liberality towards the vacation of defaults so that the merits of the cause may be reached, Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978), it is the movant’s burden to establish both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense. Claffey v. Serafino, 338 So. 2d 270 (Fla. 2d DCA 1976).
Because the appellees failed in their attempt to establish a meritorious defense, it is not necessary for us to determine if the appellees’ affidavit set forth sufficient facts to carry their burden of establishing a legal excuse, i.e., excusable neglect. The only reference in the record relating to a meritorious defense is the allegation in the unsworn motion that the appel-lees had a meritorious defense in the form of a substantial counterclaim. This allegation standing alone is insufficient.
It is not permissible to allege the conclusion that the defaulting party’s negligence was excusable without setting forth facts to support that conclusion. Likewise it is impermissible to allege the conclusion that a meritorious defense exists without alleging ultimate facts to support that conclusion. Tremblay v. Marck, 378 So. 2d 855 (Fla. 4th DCA 1979).
When the movant relies upon a factual defense, the existence of a meritorious defense should be disclosed by tendering a defensive pleading showing that defense or by sworn motion or affidavit stating facts which if proved would establish such a defense. If the movant relies upon a legal defense it is incumbent upon him to show legal grounds constituting said meritorious defense. Perry v. University Cabs, Inc., 344 So. 2d 914 (Fla. 3d DCA 1977).
Since the appellees did not sustain their burden of showing that they had a meritorious defense, the motion to set aside the default and judgment should have been denied, and we accordingly reverse and remand to the trial court with directions to vacate its order of September 2, 1982.
SCHEB, A.C.J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Westinghouse Elevator Co. v. DFS Constr. Co. & Fed. Ins. Co., 438 So. 2d 125 (Fla. 2d DCA 1983)…at the merits of a cause may be reached, it is still the movant’s burden to establish both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense. Abray Construction Co. v. Star Swimming Pools, Inc., 426 So. 2d 1046 (Fla. 2d DCA 1983); Claffey v. Serafino, 338 So. 2d 270 (Fla. 2d DCA 1976). Additionally, the mov-ant must demonstrate due diligence in seeking relief from the default. Lacore v. Giralda Bake Shop, Inc., 407 So. 2d 275 (Fla. 3d DCA 1981). It is not…
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Fla. Aviation Acad. v. Charter AIR Ctr., Inc., 449 So. 2d 350 (Fla. 1st DCA 1984)…ishes both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense. See L.B.T. Corporation v. Camacho, 429 So. 2d 88 (Fla. 5th DCA 1983); Abray Construction Company, Inc. v. Star Swimming Pools, Inc., 426 So. 2d 1046 (Fla. 2d DCA 1983). Some cases have [*353] imposed the additional requirement that the movant demonstrate due diligence in seeking relief from the default. Lacore v. Giralda Bakeshop, Inc., 407 So. 2d 275 (Fla. 3d DCA 1982); County National Bank of…
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Coquina Beach Club Condo. Ass'n, Inc. v. Wagner, 813 So. 2d 1061 (Fla. 2d DCA 2002)…ses were not verified or sworn to, the Association did not establish meritorious defenses. They cite Westinghouse Elevator Co. v. DFS Construction Co., 438 So. 2d 125 (Fla. 2d DCA 1983), and Abray Construction Co., Inc. v. Star Swimming Pools, Inc., 426 So. 2d 1046 (Fla. 2d DCA 1983). Those cases are distinguishable because they involve motions to set aside a final judgment after entry of a default, rather than a motion to set aside a clerk’s default. See N. Shore Hasp., Inc. v. Barber, 143 So. 2d 849, 851 (Fl…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)
- Perry v. Univ. Cabs, Inc., 344 So. 2d 914 (Fla. 3d DCA 1977)
- Claffey v. Serafino, 338 So. 2d 270 (Fla. 2d DCA 1976)
- Tremblay v. Marck, 378 So. 2d 855 (Fla. 4th DCA 1979)