DOROTHY E. BATES, APPELLANT,
v.
THE KEYES COMPANY, A FLORIDA CORPORATION, APPELLEE
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Dorothy Bates appealed from a default judgment entered against her in a breach of exclusive listing agreement dispute. The appellate court reversed, holding that the trial court abused its discretion by refusing to vacate the default where the defendant demonstrated excusable neglect and presented a meritorious defense.
The court held that the trial court abused its discretion in refusing to vacate the default. When a defendant demonstrates excusable neglect and the record shows contentions for facts that would establish a meritorious defense if proven, the trial court should vacate the default and allow the defendant to file an answer.
[1] A trial court abuses its discretion by failing to vacate a default judgment when the record, read in conjunction with the motion and supporting affidavits, shows the defe…
[2] A defendant seeking to vacate a default judgment must demonstrate excusable neglect.
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Join FLexlaw to unlock all legal intelligence“We reverse and hold that the trial court abused its discretion in failing to vacate the default and the entry of the default judgment.”
Establishes the core holding that the trial court's refusal to vacate the default constituted an abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceBates was one of four defendants sued by Keyes Company over an exclusive listing agreement for a property. The complaint alleged that Bates signed the…
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The appellant, Dorothy E. Bates, was one of four defendants in the trial court. She appeals from the rendition of a judgment by default entered against her after her default. She assigns as error the order denying her motion to vacate the default. We reverse and hold that the trial court abused its discretion in failing to vacate the default and the entry of the default judgment.
Appellant was among four defendants sued by the plaintiff-appellee in a dispute concerning an exclusive listing agreement. Since the other three defendants filed their answer on time, they are not parties to this appeal. As to the appellant, the complaint claimed recovery against the appellant upon two theories: (1) that the appellant signed an exclusive listing agreement personally even though she was not the owner of the property, and that because of a subsequent sale of the property she was liable for a brokerage commission; and, (2) that the appellant conspired with other defendants to effect a transfer of title of the property from the corporation in which title reposed to an officer of the corporation in order to frustrate the exclusive listing, and that such action constituted an interference with appellee’s contract. A default was entered against the appellant on August 4, 1971. A motion to vacate the default was filed on December 14, 1971. An order denying the motion to vacate default was entered on December 20, 1971, and final judgment was rendered on January 4, 1972.
Appellant urges that error was committed by the trial court in refusing to vacate the default because circumstances set forth by appellant in affidavits filed with the motion to set aside default show excusable neglect. Appellee, of course, urges that excusable neglect was not shown and urges affirmance of the order denying the motion to set aside the default judgment pursuant to the holding in Kartikes v. Demos, Fla.App.1968, 214 So.2d 86, and Solomon v. Meyer, Fla.App.1959, 116 So.2d 37. We think that the facts of this case are more properly governed by the principles set forth in North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849, and Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., Fla.App.3rd 1972, 261 So.2d 540.
Appellee, in addition, urges that the trial court properly refused to rescind the judgment because the record does not reveal the tender of a meritorious defense by the appellant. See Butler v. Butler, Fla.App. 1965, 172 So.2d 899. In the case at bar, as also occurred in North Shore Hospital, supra, we hold that the record when read in conjunction with appellant’s motion and the affidavits filed shows that the appellant contended for facts which would, if proven, establish a meritorious defense. The trial court should have vacated the default and required the filing of an answer within a short time set by the court.
Having reached the determination that the trial court erred in failing to vacate the default, we reverse the judgment appealed and remand the cause with directions to set a short time for the filing of an answer by the appellant and to proceed with the cause. Counsel for appellant and appellee have informed this court that a trial upon the merits of this cause as to defendants other than the appellant is scheduled within three weeks of the date of argument. Therefore, in order to expedite the disposition of this case by the trial court, we limit the time for filing petition for rehearing to three days from the date of the filing of this opinion.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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The Keyes Co. v. Bates, 265 So. 2d 371 (Fla. 1972)…Certiorari denied. 261 So. 2d 549. ROBERTS, C. J., and ERVIN, BOYD and DEKLE, JJ., concur. McCAIN, J., dissents.…
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Cohen v. Interstate Fire Ins. Co., 291 So. 2d 236 (Fla. 3d DCA 1974)…mely filing of a meritorious defense, requires that the issue of appellant’s personal liability upon the surety bond be decided on the merits. Cf. North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So. 2d 849; Bates v. Keyes Company, Fla.App. 1972, 261 So. 2d 549; Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., Fla.App.1972, 261 So. 2d 540. Accordingly, the final judgment is reversed and the cause is remanded with directions to grant defendant’s motion to vacate the default and for further proceedi…
Authorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Butler v. Butler, 172 So. 2d 899 (Fla. 3d DCA 1965)
- Collie v. State, 261 So. 2d 540 (Fla. 3d DCA 1972)
- Imperial Indus., Inc. v. Moore Pipe & Sprinkler Co., 261 So. 2d 540 (Fla. 3d DCA 1972)
- Kartikes v. Demos, 214 So. 2d 86 (Fla. 3d DCA 1968)
- Solomon v. Baron de Hirsch Meyer and Milton Weiss, 116 So. 2d 37 (Fla. 3d DCA 1959)