ANTHONY DECARLO AND LENAR DECARLO, APPELLANTS,
v.
KEITH HUBBARD, APPELLEE
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The court affirmed the trial court's denial of a motion to vacate a default, holding that the appellants' affidavit failed to allege sufficient ultimate facts to establish excusable neglect for missing a responsive pleading deadline.
An affidavit seeking to vacate a default must allege ultimate facts allowing the trial judge to determine whether the neglect was excusable, and conclusory explanations are insufficient.
[1] An affidavit submitted to vacate a default for excusable neglect must allege ultimate facts sufficient for the trial court to determine whether the neglect was excusable,…
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Join FLexlaw to unlock all legal intelligenceAppellants DeCarlo failed to file a responsive pleading and moved to vacate the resulting default, submitting an affidavit they claimed explained thei…
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HERSEY, Chief Judge.
This appeal concerns an order denying a motion to vacate a default. The trial court declined to accept appellants’ explanation for their failure to file a responsive pleading as “excusable neglect.” We agree, based upon the rationale of Somero v. Hendry General Hosp., 467 So. 2d 1103 (Fla. 4th DCA), rev. denied, Hayslip v. Somero, 476 So. 2d 674 (Fla.1985). The affidavit appellants submitted to the trial court failed to “allege ultimate facts so that the trial judge [could] determine the neglect in question was excusable....” Tremblay v. March, 378 So. 2d 855, 856 (Fla. 4th DCA 1979), cert. denied, 389 So. 2d 1116 (Fla.1980). It is not satisfactory to provide such explanation for the first time at the appellate level. See Farish v. Lum’s, Inc., 267 So. 2d 325 (Fla.1972).
Appellants further suggest that reversal is required because the complaint fails to state a cause of action. It is true that a “default judgment must be reversed if founded upon a complaint insufficient to form a legal basis for the judgment.” Abrams v. Paul, 453 So. 2d 826, 830 (Fla. 1st DCA 1984), (Zehmer, J., concurring in part and dissenting in part). See also Board of Regents v. Stinson-Head, Inc., 504 So. 2d 1374 (Fla. 4th DCA 1987). However, there has been no default judgment entered in this case and appellants’ argument is therefore premature.
AFFIRMED.
WALDEN and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ellish v. Richard, 622 So. 2d 1154 (Fla. 4th DCA 1993)…ich a proper predicate has been laid in the declaration. If the allegations of the declaration do not form a legal basis for the judgment recovered, it will be reversed on appeal. Id., 53 So. at 637 (citations omitted). See also DeCarlo v. Hubbard, 571 So. 2d 82 (Fla. 4th DCA 1990); Rafel Indus. Group Ltd. v. Gough, 556 So. 2d 1174 (Fla. 4th DCA 1990); Board of Regents v. Stinson-Head, Inc., 504 So. 2d 1374 (Fla. 4th DCA [*1156] 1987). Accordingly, we reverse the trial court’s order granting appellee’s moti…
Authorities Cited
- Glenna Somero and Robert Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985)
- Farish v. Lum's, Inc., 267 So. 2d 325 (Fla. 1972)
- Abrams v. Paul, 453 So. 2d 826 (Fla. 1st DCA 1984)
- Bd. OF Regents of the State of Fla. v. Stinson-Head, Inc., 504 So. 2d 1374 (Fla. 4th DCA 1987)
- Tremblay v. Marck, 378 So. 2d 855 (Fla. 4th DCA 1979)