NAPCO PAINTS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
LAPORTE (U.S.), INC., APPELLEE
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Affirmed denial of motion to vacate default judgment where defendant failed to set forth a meritorious defense as required by Fla.R.Civ.P. 1.540(b)(1) and trial court lacked jurisdiction to entertain motion for rehearing.
A motion to vacate a default judgment under Fla.R.Civ.P. 1.540(b)(1) must set forth specific facts establishing a meritorious defense, not merely conclusory allegations, and must be supported by affidavits or evidence.
[1] A motion to vacate a default judgment under Fla.R.Civ.P. …
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Join FLexlaw to unlock all legal intelligenceNapco Paints, Inc. filed a motion to vacate a final default judgment entered against it by LaPorte (U.S.), Inc., claiming it had a meritorious defense…
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PER CURIAM.
The order denying the motion to vacate the final default judgment herein filed by the defendant Napco Paints, Inc. [Napco] pursuant to Fla.R.Civ.P. 1.540(b)(1), is affirmed upon a holding that: (1) the defendant Napco’s motion to vacate filed pursuant to Fla.R.Civ.P. 1.540(b)(1) fails to set forth a meritorious defense, a precondition to any relief herein, in that: (a) the said motion is unsworn and alleges only that Napco “has a meritorious defense,” without setting forth any of the facts of the alleged defense, and (b) no affidavits, evidence or testimony was ever adduced below on the said motion; Newkirk v. Florida Insurance Guaranty Association, Inc., 464 So. 2d 1256 (Fla. 3d DCA 1985); Hall v. Byington, 421 So. 2d 817, 817 (Fla. 4th DCA 1982); Pedro Realty, Inc. v. Silva, 399 So. 2d 367, 369 (Fla. 3d DCA 1981), approved, 411 So. 2d 872 (Fla.1982); Tremblay v. Marck, 378 So. 2d 855 (Fla. 4th DCA 1979), cert. denied, 389 So. 2d 1116 (Fla.1980); Mission East Co. v. Wyszatycki, 362 So. 2d 87, 88 (Fla. 3d DCA 1978); Perry v. University Cabs, Inc., 344 So. 2d 914, 915 (Fla. 3d DCA 1977); and (2) the trial court had no jurisdiction to entertain the defendant Napco’s motion for rehearing on the denial of the motion to vacate, Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386 (Fla. 3d DCA 1986), and therefore could not consider any of the exhibits attached thereto.
Affirmed.
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Citator
Cited By
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Mathews Corp. v. Green's Pool Serv., 584 So. 2d 1006 (Fla. 3d DCA 1990)…ting ultimate facts and do not, in our view, satisfy the requirement that a meritorious defense must be shown in order to set aside a final judgment under Fla.R.Civ.P. 1.540 based on excusable neglect. See Napco Paints, Inc. v. LaPorte (U.S.), Inc., 490 So. 2d 1023 (Fla. 3d DCA 1986); Westinghouse Elevator Co. v. DFS Constr. Co., 438 So. 2d 125 (Fla. 2d DCA 1983); Tremblay v. March, 378 So. 2d 855 (Fla. 4th DCA 1979), cert. denied, 389 So. 2d 1116 (Fla.1980); Bay Convalescent Center, Inc. v. Carroll, 352 So. 2…
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Inter-Atlantic Ins. Servs., Inc. v. Hernandez, 632 So. 2d 1069 (Fla. 3d DCA 1994)…of excusable neglect. The affidavit filed by Inter-Atlantic contains conclusive statements rather than the facts required to explain why it should be excused for not responding to plaintiffs complaint. See Napco Paints, Inc. v. LaPorte (U.S.), Inc., 490 So. 2d 1023 (Fla. 3d DCA 1986); Newkirk v. Florida Ins. Guar. Ass’n, Inc., 464 So. 2d 1256 (Fla. 3d DCA 1985). Since Inter-Atlantic failed to show any excusable neglect, we find that the trial court did not abuse its discretion in failing to set aside the defau…
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Thornton v. Farhat Jabeen, 683 So. 2d 150 (Fla. 3d DCA 1996)…hout authority to entertain Victoria Marine’s motion for rehearing.” Id. at 1391. Accord, Talley v. Canal Indem. Co., 558 So. 2d 1088 (Fla. 4th [*151] DCA 1990); Catalano v. Catalano, 516 So. 2d 77 (Fla. 5th DCA 1987); Napco Paints, Inc. v. LaPorte, 490 So. 2d 1023 (Fla. 3d DCA 1986). Thus, the trial court did not have jurisdiction to rule on Jabeen’s motion for rehearing once it had denied her motion to vacate the final summary judgment. Reversed and remanded with instructions to reinstate the final summary…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386 (Fla. 3d DCA 1986)
- Pedro Realty Inc. v. Silva, 399 So. 2d 367 (Fla. 3d DCA 1981)
- Perry v. Univ. Cabs, Inc., 344 So. 2d 914 (Fla. 3d DCA 1977)
- Hall v. Eleanore Florence Byington & Rinker Materials Corp., 421 So. 2d 817 (Fla. 4th DCA 1982)
- Tremblay v. Marck, 378 So. 2d 855 (Fla. 4th DCA 1979)
- THE Florida BAR v. Ethier, 411 So. 2d 872 (Fla. 1982)
- Mission E. Co. v. Wyszatycki, 362 So. 2d 87 (Fla. 3d DCA 1978)
- Newkirk v. Fla. Ins. Guar. Ass'n, Inc., 464 So. 2d 1256 (Fla. 3d DCA 1985)
- Nat'l Ben Franklin Life Ins. Corp. v. Cohen, 464 So. 2d 1256 (Fla. 4th DCA 1985)