MATHEWS CORPORATION, APPELLANT,
v.
GREEN'S POOL SERVICE, APPELLEE
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Mathews Corporation appealed a trial court's denial of its motion to set aside a default judgment under Florida Rule of Civil Procedure 1.540. The court affirmed, holding that the defendant failed to demonstrate excusable neglect and a meritorious defense as required by rule.
The court affirmed the denial of the motion, holding that the defendant failed to satisfy the requirements of Rule 1.540 because it did not establish excusable neglect with a meritorious defense supported by sworn proof of ultimate facts, and the proposed answer lacked sufficient factual allegations.
[1] A claim that a clerk's default was erroneously entered is not a fundamental error that can be raised for the first time in a motion to set aside a final judgment.
[2] A motion to set aside a final judgment based on excusable neglect requires sworn proof establishing a meritorious defense, not merely conclusory assertions.
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Join FLexlaw to unlock all legal intelligence“the defendant's motion to vacate and affidavits in support thereof contain only conclusory assertions that defendant has a meritorious defense to plaintiff's complaint and no other sworn proofs were submitted establishing, as required, such defense”
Establishes that the defendant failed to meet the requirement of proving a meritorious defense through sworn evidence rather than mere conclusions
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Join FLexlaw to unlock all legal intelligenceMathews Corporation failed to respond to Green's Pool Service's complaint, resulting in a clerk's default and entry of a final judgment. The defendant…
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PER CURIAM.
This is an appeal by the defendant Mathews Corporation from a trial court order denying its motion filed pursuant to Fla. R.Civ.P. 1.540 seeking to set aside an adverse final judgment entered upon a clerk’s default. We affirm based on the following briefly stated legal analysis.
First, there is no merit to the defendant’s point on appeal that the final judgment must be set aside because the clerk’s default was erroneously entered due to an alleged defect in the subject default order. This point was not raised in the defendant’s motion to set aside the final judgment and does not rise to the level of a fundamental error.
Moreover, we read the clerk’s default entered “against the above-named Defendant” to mean the defendant stated in the caption to the motion for default, namely, the defendant Mathews Corporation. Second, there is no merit to the defendant’s point on appeal that the defendant was otherwise entitled to have the final judgment set aside based on excusable neglect. Although arguably excusable neglect was shown below, the defendant’s motion to vacate and affidavits in support thereof contain only conclusory assertions that defendant has a meritorious defense to plaintiff’s complaint and no other sworn proofs were submitted establishing, as required, such defense.
Moreover, defendant’s unsworn proposed answer, affirmative defenses, and counterclaim were largely a general denial without sufficient allegation of supporting 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. 2d 900 (Fla. 1st DCA 1977), cert. dismissed, 364 So. 2d 881 (Fla.1978).
But cf. Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984) (meritorious defense shown where motion and affidavits contained ultimate facts supporting proposed affirmative defenses).
Third, the affidavit of John Raines attached to and incorporated by the complaint establishes the monies due and owing in this case, and, upon the defendant’s default to the complaint, was sufficient to support the final judgment in the same amount plus interest. The defendant’s point on appeal contesting the amount of the final judgment is therefore rejected.
Finally, the last point on appeal has no merit and is unsupported by any authority. The order under review is therefore, in all respects,
Affirmed.
PER CURIAM.
Because the claim sued upon below was a liquidated damages claim, it was not necessary, as urged, for the trial court to receive evidence below before entering the final default judgment appealed from. The complaint herein, which incorporated a sworn-to claim of lien, sought to foreclose a mechanic’s lien in the amount of $39,-526.00; when the defendant failed to respond to this complaint and a clerk’s default was entered, the trial court properly entered a final judgment against the defendant in the amount of $39,526.00. We find no merit in the defendant’s major point on rehearing that the amount of money damages was not properly proven below; damages need not be proven at all in this case given the aforesaid clerk’s default on this liquidated damages claim. Moore v. Boyd, 62 So. 2d 427, 429-30 (Fla.1952); Peters Machinery Corp. v. Blairsville Mach. Prods. Co., 413 So. 2d 802, 803 (Fla. 3d DCA 1982); see also Bird v. International Graphics, Inc., 374 So. 2d 52 (Fla. 3d DCA 1979); Fla.R.Civ.P. 1.500(e).
We have not overlooked the other points raised on the defendant’s motion for rehearing, but find no merit therein. The defendant’s motion for rehearing is, therefore, in all respects,
Denied.
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Asian Imports, Inc. v. Pepe, 633 So. 2d 551 (Fla. 1st DCA 1994)…[*553] ages. However, damages are not liquidated if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment. Bowman, 432 So. 2d at 662-63; see Mathews Corp. v. Green’s Pool Serv., 584 So. 2d 1006 (Fla. 3d DCA 1990) (sworn-to claim of lien attached to and incorporated by complaint seeking to foreclose mechanic’s hen constituted claim for liquidated damages such that it was unnecessary to hold hearing before entry of final judgment), review de…
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Roggemann v. Boston Safe Deposit & Tr. Co., 670 So. 2d 1073 (Fla. 4th DCA 1996)…s not necessary to hold an eviden-tiary hearing to establish these damages, since the court could determine the proper amount owed from the allegations in the complaint and the attachments incorporated into it. Mathews Corp. v. Green’s Pool Service, 584 So. 2d 1006, 1007 (Fla. 3d DCA 1990), review denied, 592 So. 2d 681 (Fla. 1991); see Asian Imports, Inc. v. Pepe, 633 So. 2d 551, 553 (Fla. 1st DCA 1994). For unliquidated damages, a different result obtains. Roggemann’s guaranty provided for the assessment of…
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Gibson Tr., Inc. v. Allen, 883 So. 2d 379 (Fla. 4th DCA 2004)…na Beach Club Condo., 813 So. 2d at 1064. Where a default judgment has been entered, mere conclusory assertions or general denials are insufficient without sufficient allegations of supporting ultimate fact. See Mathews Corp. v. Green’s Pool Serv., 584 So. 2d 1006, 1007 (Fla. 3d DCA 1990). However, in Moore v. Powell, 480 So. 2d 137, 138 (Fla. 4th DCA 1985), we [*383] held that a different rule applies to an interlocutory order of default where no final judgment has been entered. In such a case, a general den…
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
- Westinghouse Elevator Co. v. DFS Constr. Co. & Fed. Ins. Co., 438 So. 2d 125 (Fla. 2d DCA 1983)
- Moore v. Boyd, 62 So. 2d 427 (Fla. 1952)
- Crews v. The Dania Bank, 352 So. 2d 900 (Fla. 4th DCA 1977)
- S. Trail Fire Control Dist. & Nationwide Ins. Co. v. Johnson, 449 So. 2d 947 (Fla. 1st DCA 1984)
- Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984)
- Tremblay v. Marck, 378 So. 2d 855 (Fla. 4th DCA 1979)
- Napco Paints, Inc. v. LaPORTE (U.S.), Inc., 490 So. 2d 1023 (Fla. 3d DCA 1986)
- Peters Mach. Corp. v. Blairsville Mach. Prods. Co., Inc., 413 So. 2d 802 (Fla. 3d DCA 1982)
- Bird v. Int'l Graphics, Inc., 374 So. 2d 52 (Fla. 3d DCA 1979)