IMPERIAL INDUSTRIES, INC., A DELAWARE CORPORATION, AND TRIANGLE PROPERTIES, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
MOORE PIPE & SPRINKLER CO., A FLORIDA CORPORATION, APPELLEE
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Imperial Industries and Triangle Properties appealed an order denying their motion to vacate defaults and set aside a default judgment in a mechanic's lien foreclosure action. The Florida appellate court reversed, holding that the trial court erred in failing to apply the liberal policy favoring vacation of defaults to permit trial on the merits, where the defendants presented credible affidavits explaining their failure to respond.
The trial court erred in denying the motion to vacate the defaults and set aside the judgment. The court should have vacated the defaults and set aside the foreclosure judgment upon appropriate conditions, as the defendants presented credible, uncontradicted affidavits explaining their failure to timely respond, and the appellee suffered no substantial disadvantage beyond having to prove its case.
[1] A trial court should vacate a default and set aside a default judgment when the defendant's failure to answer is due to a misunderstanding or mistake, and the defendant p…
[2] Florida courts favor setting aside defaults to allow for a trial on the merits, particularly when no substantial disadvantage to the plaintiff would result.
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Join FLexlaw to unlock all legal intelligence“The policy of the courts of Florida in setting aside defaults in order to permit a trial upon the merits is one of liberality and has too often been dismissed to require restatement here.”
Establishes the governing legal standard—Florida's liberal policy favoring vacation of defaults to reach the merits
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Join FLexlaw to unlock all legal intelligenceThe defendants were served with summonses in August 1971 in a mechanic's lien foreclosure action. Defaults were entered against Triangle Properties on…
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The appellants seek review of an order denying their motion to vacate a default entered against them and to set aside a default judgment entered pursuant to the default. In the trial court, the appellants were the defendants in an action brought by the plaintiff-appellee to foreclose a mechanic’s lien. Service of the summonses was effected in August, 1971; default was entered on September 3rd against Triangle Properties, Inc., and on September 10th against Imperial Industries, Inc. Appellants’ motion to vacate the defaults was filed on September 23rd; an answer and counterclaim were tendered on September 24th. The court denied the motion to vacate the defaults. We hold that the trial court erred in failing to apply the principles set forth by the Supreme Court of Florida in North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849.
The appellants contend that the affidavits on file indicate that when the summonses and complaint were served by the sheriff, that the representative served was under the impression that the serving officer would also serve appellants’ counsel and resident agent. This allegation is to some extent strengthened by the fact that the summonses on the face instructed the serving officer to attempt service upon the resident agent. The president of the appellants further alleged that the summonses were lost in his office and that he did not become aware that an answer had not been filed until September 22nd, eight days after the entry of the default judgment. The affidavit of the resident agent alleged that he was out of the country at the time of the service and that he did not receive *542knowledge of the suit until September 22nd. There is nothing in the record to contradict any of the statements in the resident agent’s affidavit.
Based on these facts, we think that the court should have vacated the default and set aside the judgment of foreclosure upon such conditions as appeared proper to the trial court. See Rule 1.540(b), R.C.P., 31 F.S.A. Cf. North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849; Jordan v. Jordan, Fla.App.1971, 243 So.2d 607; General Finance Corporation of Florida v. Northside Bank of Miami, Fla.App.1968, 212 So.2d 917; Gordon v. Vaughan, Fla.App.1967, 193 So.2d 474; Florida Investment Enterprises, Inc. v. Kentucky Company, Inc., Fla.App. 1964, 160 So.2d 733.
The policy of the courts of Florida in setting aside defaults in order to permit a trial upon the merits is one of liberality and has too often been dismissed to require restatement here. In the instant case, the record does not reveal any substantial disadvantage to the appellee except that it would be required to prove its case in an adversary proceeding. The discretion of a trial judge is of course a heavy factor in these cases, but as always judicial discretion must rest upon facts ascertainable from the record. Holiday Ranch, Inc. v. Roudabush, Fla.App.1965, 171 So.2d 558. Appellee suggests that perhaps the trial judge did not believe the content of the affidavits presented in connection with the motion to set aside the default and default judgment. The court did not so find nor is there any arguable basis for such a finding in the record. We therefore conclude that the order denying the motion to vacate default and set aside default judgment must be reversed. The order appealed is reversed with directions to vacate the default and set aside the default judgment upon such conditions as the court shall find appropriate.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
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Garcia Ins. Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977)…us transgression of equally important principles, i.e. those that free our system of justice from technicality and from results that do not comport with justice and common sense. As stated in Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So. 2d 540, 542 (Fla. 3d DCA 1972), “[t]he discretion of a trial judge is ... a heavy factor . but as always judicial discretion must rest upon facts ascertainable from the record.” Reversed and Remanded. BOARDMAN, C. J., and SCHEB, J., concur.…
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McALICE v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979)…rt’s discretion should be liberally exercised and all reasonable doubt resolved in favor of granting applications for relief so as to permit a determination of the controversy upon the merits. Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So. 2d 540 (Fla. 3d DCA 1972). The purpose of a judgment by default is to speed the cause and prevent the defendant from impeding the plaintiff in the prosecution of his claim; defaults are not intended to furnish advantage to the plaintiff so that defense may…
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Carter v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987)…eratori, 338 So. 2d 74 (Fla. 3d DCA 1976); Plotkin v. Deatrick Leasing Co., 267 So. 2d 368 (Fla. 3d DCA 1972); Renuart-Bailey-Cheely Lumber & Supply Co. v. Hall, 264 So. 2d 84 (Fla. 3d DCA 1972); Imperial Indust., Inc. v. Moore Pipe & Sprinkler Co., 261 So. 2d 540 (Fla. 3d DCA 1972); see also Credit Gen. Ins. Co. v. Thomas, 515 So. 2d 336 (Fla. 3d DCA 1987), and we do so again. Since it is conceded that the defendant presented a meritorious defense and that it acted with due diligence after discovering the de…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Fla. Inv. Enters., Inc. v. The Ky. Co., Inc., 160 So. 2d 733 (Fla. 1st DCA 1964)
- Gordon v. Vaughan, 193 So. 2d 474 (Fla. 3d DCA 1967)
- Holiday Ranch, Inc. v. Roudabush, 171 So. 2d 558 (Fla. 2d DCA 1965)
- Gen. Fin. Corp. OF Fla. v. Northside Bank OF Miami, 212 So. 2d 917 (Fla. 3d DCA 1968)
- Jordan v. Jordan, 243 So. 2d 607 (Fla. 3d DCA 1971)