EDNA CLARK, APPELLANT,
v.
ROBERTO'S, INC., APPELLEE
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Appellant Clark sued Roberto's, Inc. to rescind dance lesson enrollment agreements totaling nearly $100,000. After Roberto's failed to timely respond, a default judgment was entered in Clark's favor. The trial court vacated the default, finding service proper and neglect excusable, but the appellate court reversed because Roberto's failed to demonstrate a meritorious defense, a requirement for setting aside defaults.
The trial court abused its discretion in vacating the default judgment because Roberto's failed to demonstrate a meritorious defense, which is a necessary element to set aside a default. Both excusable neglect and a meritorious defense must be shown; the absence of either defeats the motion to vacate.
[1] A default judgment may be vacated when a defendant demonstrates both excusable neglect and a meritorious defense.
[2] A defendant seeking to vacate a default judgment must allege and demonstrate a meritorious defense.
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“It has long been the policy of the courts in this state to liberally set aside defaults for failure of a defendant to plead so as to allow a determination of the controversy on the merits when the defendant demonstrates that his neglect was excusable and that he has a meritorious defense.”
Establishes the two-part test required to set aside a default: both excusable neglect and a meritorious defense must be shown.
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Join FLexlaw to unlock all legal intelligenceAppellant Clark paid appellee Roberto's, Inc. $99,895 for approximately 2,800 hours of dancing lessons under eleven enrollment agreements. Service of …
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DOWNEY, Judge.
Appellant sued appellee to rescind eleven enrollment agreements under which she paid appellee $99,895 for approximately 2800 hours of dancing lessons. (The complaint is strangely reminiscent of Vokes v. Arthur Murray, Inc., Fla.App. 1968, 212 So. 2d 906, 28 A.L.R.3d 1405.) Service of process was had upon appellee’s treasurer. When appellee failed to timely plead to the complaint the clerk entered a default against it. Several days later appellee filed a motion to dismiss for failure to state a cause of action' and a motion for change of venue. Approximately two weeks thereafter the court held an ex parte hearing and entered final judgment for appellant in the amount of $71,571.10. Ap-pellee then moved to vacate the default alleging as grounds that the service of process on appellee’s treasurer was insufficient under § 48.081, F.S.1973. The motion also alleged a misunderstanding regarding the date of service by the sheriff which caused the late filing of its defensive motions. After a hearing on the motion to vacate, the trial judge entered an order finding that the service of process was proper and that appellee’s tardiness in pleading resulted from excusable neglect. The default and the final judgment were accordingly vacated and set aside. This interlocutory appeal is from that order. It has long been the policy of the courts in this state to liberally set aside defaults for failure of a defendant to plead so as to allow a determination of the controversy on the merits when the defendant demonstrates that his neglect was excusable and that he has a meritorious defense. See, e. g., Florida Investment Enterprises, Inc., v. Kentucky Co., Fla.App.1964, 160 So. 2d 733. However, the absence of either of these elements will defeat an attempt to set aside a default. Chaney v. Headley, Fla.1956, 90 So. 2d 297; Winter Park Arms, Inc., v. Akerman, Fla.App.1967, 199 So. 2d 107; Empire Electric Co., v. R. J. Hunt Construction Co., Fla.App.1972, 264 So. 2d 114.
In this case appellee never made the first gesture toward demonstrating that it had a meritorious defense. Its motion to vacate does not allege any such defense. Moreover, at the hearing on the motion to vacate, the trial judge asked appellee’s counsel about the necessity of showing a meritorious defense, but counsel still failed to show, either orally or by subsequent pleading, that appellee had such a defense.
Under the circumstances recounted above, the trial judge abused his discretion in vacating the default judgment. Accord ingly, the order appealed from is reversed and the cause is remanded with directions to reinstate the default judgment of August 2,1974.
Reversed.
CROSS and OWEN, JJ., concur. .
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Fla. Inv. Enters., Inc. v. The Ky. Co., Inc., 160 So. 2d 733 (Fla. 1st DCA 1964)
- Winter Park Arms, Inc. v. Akerman, 199 So. 2d 107 (Fla. 4th DCA 1967)
- Chaney v. Headley, 90 So. 2d 297 (Fla. 1956)
- Vokes v. Arthur Murray, Inc., 212 So. 2d 906 (Fla. 2d DCA 1968)
- Empire Elec. Co. v. R. J. Hunt Constr. Co., Inc., 264 So. 2d 114 (Fla. 4th DCA 1972)