SANTUCCI ARMANDO, S.C.L., A FOREIGN CORPORATION, APPELLANT,
v.
MARIO PLAZZA, D/B/A TILE WORLD OF ITALY, APPELLEE
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Santucci Armando appeals a trial court order vacating a default final judgment against Tile World of Italy for unpaid invoices and a worthless check. The appellate court reverses, holding that the appellee failed to establish excusable neglect as required by law to set aside a default judgment.
The court reversed the trial court's order vacating the default judgment, holding that it was an abuse of discretion because the appellee failed to establish excusable neglect as required by law, and the affidavit filed in support of the motion did not address the excusable neglect requirement.
[1] A party moving to vacate a default judgment must establish excusable neglect by affidavit or other sworn statement.
[2] Factual representations or argument by counsel are insufficient to establish excusable neglect for vacating a default judgment.
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Join FLexlaw to unlock all legal intelligence“A party moving to vacate a default must set forth facts explaining or justifying mistake or inadvertence by affidavit or other sworn statement.”
Establishes the legal requirement for moving to vacate a default judgment
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Join FLexlaw to unlock all legal intelligenceSantucci Armando filed suit against Tile World of Italy for unpaid goods and a $5,000 worthless check, totaling $30,430.82. The parties agreed to a st…
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QUINCE, Judge.
Santucci Armando, S.C.L., appeals a trial court order granting appellee’s motion to set aside a default final judgment. We reverse because the appellee, Mario Piazza, d/b/a Tile World of Italy, did not establish a legal basis for setting aside the judgment.
Appellant filed a complaint against Tile World of Italy on an attached account, open account, goods sold and delivered, and issuing a worthless cheek. The worthless check was for $5,000.00, and the total of the attached account, open account and goods sold and delivered was $25,430.82. After the filing of the complaint, appellee signed a stipulation to stay entry of judgment admitting liability and agreeing to pay the principal sum due plus court costs. The agreement required an initial payment of $5,000.00 and monthly payments of $2,000.00 until the balance was paid in full. Appellee further agreed to entry of a final judgment in favor of appellant should appellee default. The initial payment was made, but appellee failed to make any monthly payments. As a result of this default, appellant was granted a default final judgment for the principal sum of $20,430.82 plus costs of $167.50 and prejudgment interest of $8,545.98. After entry of the final judgment, appellee made payments totalling $12,000.00. Appellee then moved to set aside the judgment.
A party moving to vacate a default must set forth facts explaining or justifying mistake or inadvertence by affidavit or other sworn statement. Lee v. Chung, 528 So. 2d 1313 (Fla. 2d DCA 1988). It is the movant’s burden to prove excusable neglect. Id. at 1316. Factual representations or argument by counsel made during a hearing are not sufficient. Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So. 2d 838, 840 (Fla. 2d DCA 1994).
In support of his motion to set aside the default final judgment, appellee filed an affidavit asserting certain defenses. However, as in Pertz v. Zohar, 556 So. 2d 459 (Fla. 2d DCA 1990), the affidavit did not address the issue of excusable neglect. Counsel for appellee argues on appeal that factual issues and legal arguments were presented to the trial court which support the order vacating the default. There is no transcript of the hearing contained in the record on appeal. Moreover, the hearing was apparently nonev-identiary.
It is an abuse of discretion for a trial court to vacate a judgment under circumstances where the moving party has not established excusable neglect. Lee; Pertz. Because the movant failed to provide the necessary evidentiary support for the motion to vacate the judgment, we find that the trial court abused its discretion. We, therefore, reverse the order vacating the final judgment and remand with instructions that the judgment be reinstated.
Reversed and remanded with instructions.
RYDER, A.C.J., and SCHOONOVER, J., concur.
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blimpie Cap. Venture, Inc. v. Palms Plaza P'rs, Ltd., 636 So. 2d 838 (Fla. 2d DCA 1994)
- Hyun LEE and Oh Hi Lee v. Su Shin Chung and Yang Soon Chung, 528 So. 2d 1313 (Fla. 2d DCA 1988)
- Pertz v. Zohar, 556 So. 2d 459 (Fla. 2d DCA 1990)