PARTNERSHIP INVESTMENTS OF FLORIDA, INC., A FLORIDA CORPORATION, APPELLANT,
v.
CENDECO, INC., A FLORIDA CORPORATION, APPELLEE
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Partnership Investments appeals the denial of its motion to vacate a default judgment on a promissory note. The trial court erred by treating the motion to vacate as a summary judgment motion and deciding the merits of the defense, rather than simply allowing the defendant to file a responsive pleading upon showing of a meritorious defense.
The trial court erred in treating the motion to vacate as a summary judgment or judgment on pleadings motion and deciding the merits of the defense. The default and judgment should have been vacated and the defendant allowed reasonable time to file a responsive pleading, with the ultimate merits to be resolved through further proceedings.
[1] A trial court errs by treating a motion to vacate a default judgment, accompanied by a showing of a meritorious defense, as a motion for summary judgment or judgment on t…
[2] A defendant who timely and properly files a motion to vacate a default judgment with a showing of an apparent meritorious defense should be allowed a reasonable time to f…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the record further reveals that the learned trial judge treated the pleadings essentially as a motion for summary judgment or a motion for judgment on the pleadings, deciding that the asserted defense was not meritorious and denied appellant's motion. In so doing he erred.”
Establishes that the trial court's primary error was treating the motion to vacate as a summary judgment motion rather than following proper default vacatur procedures.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant, defendant in the trial court, timely and properly filed a motion to vacate a default judgment on a promissory note accompanied by a showing…
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BOYER, Acting Chief Judge.
By this interlocutory appeal appellant, who was defendant in the trial court, appeals the denial of his motion to set aside a default judgment rendered on a promissory note. The evidence reveals that appellant timely and properly filed a motion to vacate the default and resulting judgment accompanied by a showing of an apparent meritorious defense, all in accordance with the procedure and applicable law discussed by this Court in Metcalf v. Langston, Fla.App. 1st 1974, 296 So. 2d 81, certiorari dismissed, Sup.Ct.Fla.1974, 302 So. 2d 414. However, the record further reveals that the learned trial judge treated the pleadings essentially as a motion for summary judgment or a motion for judgment on the pleadings, deciding that the asserted defense was not meritorious and denied appellant’s motion. In so doing he erred. (See Metcalf v. Langston, supra, and the cases therein cited)
We do not here determine that, as a matter of law, the defenses raised by appellant are meritorious as a matter of fact. We only hold that under the circumstances revealed by the record before us the default and final judgment consequent thereon should have been vacated and the defendant should have been allowed a reasonable time within which to file its responsive pleading. Whether the appellee, plaintiff in the trial court, will ultimately prevail by motion for summary judgment or at trial on the merits are matters which can only be properly resolved by further proceedings.
Reversed and remanded for further proceedings consistent herewith.
Appellee’s motion for attorney’s fees incident to this interlocutory appeal is denied.
It is so ordered.
McCORD, J., concurs.
MILLS, J., dissents.
MÍLLS, Judge
(dissenting).
I dissent.
The record before us does not support appellant-defendant’s allegations that its failure to timely respond to appellee-plain-tiff’s complaint was due to inadvertence, mistake or excusable neglect. In addition, the record reflects that subsequently appellant-defendant failed to comply with the trial court’s order by filing its defenses or answer within the time required by the order. I agree with the trial court that a meritorious defense was not alleged by appellant-defendant. Appellant-defendant admitted liability on the promissory note sued upon, and the affirmative defense of set-off affirmatively showed that the set-off was between parties other than those in this litigation.
I would affirm.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Metcalf v. Langston, 296 So. 2d 81 (Fla. 1st DCA 1974)
- Metcalf v. Langston, 302 So. 2d 414 (Fla. 1974)
- Mitrisin v. Hill, 302 So. 2d 414 (Fla. 1974)