MILDRED PERRY, APPELLANT,
v.
UNIVERSITY CABS, INC., APPELLEE
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This interlocutory appeal involves a plaintiff's challenge to a trial court's order setting aside a default judgment entered against the defendant. The court reversed, holding that a defendant seeking to set aside a default must show a meritorious defense through sworn testimony, affidavit, or a defensive pleading—not merely an unsworn statement.
A defendant seeking to set aside a default must show both excusable neglect and a meritorious defense. A mere unsworn assertion of a meritorious defense is insufficient; the defendant must either tender a defensive pleading showing the defense or provide a sworn motion or affidavit disclosing facts that would constitute a meritorious defense.
[1] A motion to set aside a default requires a showing of excusable neglect and a meritorious defense.
[2] A mere statement of excusable neglect and a meritorious defense in an unsworn motion is insufficient to set aside a default.
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“To entitle the defendant to have the default set aside, in addition to a showing of excusable neglect, it was incumbent upon the defendant to show it had a meritorious defense, and a mere statement to that effect in an unsworn motion was not sufficient.”
Establishes the two-part test required to set aside a default and rejects unsworn assertions as sufficient proof of a meritorious defense.
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Join FLexlaw to unlock all legal intelligenceThe defendant failed to file a defensive pleading within the required time, resulting in a default judgment against it. The defendant then filed an un…
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PER CURIAM.
This interlocutory appeal, filed by the plaintiff below, is from an order granting a motion of the defendant to set aside a default which had been entered against the defendant for its failure to file a defensive pleading within the time provided therefor. The defendant’s unsworn motion to set aside the default claimed excusable neglect of the defendant’s attorney in failing to timely file a defensive pleading, and stated that the defendant had a meritorious defense.
To entitle the defendant to have the default set aside, in addition to a showing of excusable neglect, it was incumbent upon the defendant to show it had a meritorious defense, and a mere statement to that effect in an unsworn motion was not sufficient. The existence of a meritorious defense should be disclosed in tendering a defensive pleading showing the defense, or by a sworn motion or affidavit stating facts which if proved would be a meritorious defense, where a factual defense is relied on, or by showing legal grounds constituting a meritorious defense where a legal rather than a factual defense is to be relied on. See State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40, 42-43 (1931); Florida Inv. Enterprises, Inc. v. Kentucky Co., 160 So. 2d 733, 735 (Fla. 1st DCA 1964); Butler v. Butler, 172 So. 2d 899, 901 (Fla. 3d DCA 1965); Metcalf v. Langston, 296 So. 2d 81 (Fla. 1st DCA 1974); Grimsely v. Florida Universal Financial Gorp., 339 So. 2d 721, 722 (Fla. 1st DCA 1976).
In this case the motion filed by the defendant to set aside the default should have been denied, in the absence of a showing that the defendant had a meritorious defense.
The order appealed from is reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
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Westinghouse Elevator Co. v. DFS Constr. Co. & Fed. Ins. Co., 438 So. 2d 125 (Fla. 2d DCA 1983)…. When a movant relies on a legal defense to establish a meritorious defense, it is incumbent upon him to show legal grounds constituting said meritorious defense. Abray Construction Co. v. Star Swimming Pools, Inc.; Perry v. University Cabs, Inc., 344 So. 2d 914 (Fla. 3d DCA 1977). An unverified answer may be sufficient if the issue involved is a matter of law, not a matter of proof, i.e., an answer alleging that the statute of limitations precludes the action. Bay Convalescent Center, Inc. v. Carroll, 352…
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Pedro Realty Inc. v. Silva, 399 So. 2d 367 (Fla. 3d DCA 1981)…. 2d 212 (Fla.3d DCA 1975); Rubin v. Baker, 276 So. 2d 532 (Fla.3d DCA 1973). A defendant may not merely state that it has a meritorious defense, but must disclose such a defense in a defensive pleading or affidavit. Perry v. University Cabs, Inc., 344 So. 2d 914 (Fla.3d DCA 1977); Tremblay v. Marck, 378 So. 2d 855 (Fla.4th DCA 1979), cert. denied, 389 So. 2d 1116 (Fla.1980). As a general rule, a principal is not liable for actions of its agents committed outside the scope of its employment and before one m…
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Lloyd's Underwriter's AT London v. Ruby, Inc., 801 So. 2d 138 (Fla. 4th DCA 2001)…swer within 20 days after service of original process and the initial pleading on the defendant. Once a default is entered, the party moving to set it aside must show excusable neglect as well as a meritorious defense. See Perry v. Univ. Cabs, Inc., 344 So. 2d 914, 915 (Fla. 3d DCA 1977). In my view, Lloyd’s status as a corporation “familiar with litigation” combined with the facts of this case does not create a situation where no reasonable person could take the view adopted by the trial court. See Canakari…
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
- Fla. Inv. Enters., Inc. v. The Ky. Co., Inc., 160 So. 2d 733 (Fla. 1st DCA 1964)
- State Bank of Eau Gallie v. Raymond, 103 Fla. 649 (Fla. 1931)
- Metcalf v. Langston, 296 So. 2d 81 (Fla. 1st DCA 1974)
- Butler v. Butler, 172 So. 2d 899 (Fla. 3d DCA 1965)
- Willaim C. Grimsely, Jr. v. Fla. Universal Fin. Corp., 339 So. 2d 721 (Fla. 1st DCA 1976)