ATLANTIC BANK OF WEST JACKSONVILLE, A CORPORATION, APPELLANT,
v.
JAMES WASHINGTON, D/B/A J. N. & W. TRUCKING CORP., APPELLEE
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In this interlocutory appeal, the court reversed a trial court's order setting aside a default judgment against Washington in a check dispute case. The appellate court held that a motion to set aside a default judgment must allege both a meritorious defense and a reason excusing the party's neglect in failing to timely plead, and Washington's motion failed to satisfy these requirements.
The trial court abused its discretion by setting aside the default judgment. A motion to set aside a default judgment must set forth both a meritorious defense and a reason excusing the party's neglect in failing to file timely pleadings; Washington's motion was deficient because it alleged no facts excusing his delay.
[1] A motion to set aside a default judgment requires the movant to set forth both a meritorious defense and a reason that excuses the party's neglect in failing to file a ti…
[2] A trial court abuses its discretion when it sets aside a default judgment without the movant alleging facts that excuse their neglect in timely filing a pleading.
Previewing 2 of 3 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“a motion to set aside a default judgment is addressed to the sound discretion of the trial court. However, before such discretion may be properly exercised, the motion itself must set forth both a meritorious defense and a reason that would excuse the party's neglect in failing to file his answer or otherwise plead within the time prescribed by applicable rule.”
Establishes the dual requirements that must be met in a motion to set aside a default judgment
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Join FLexlaw to unlock all legal intelligenceAtlantic Bank of Jacksonville sued James Washington for a dishonored check in the amount of $9,000 that Washington had executed and delivered to J. J.…
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MELVIN, Judge.
This interlocutory appeal was filed from an order granting appellee James Washington’s motion to set aside a default judgment entered against him and in favor of appellant bank.
The Atlantic Bank of Jacksonville sued James Washington and J. J. Bonilla, alleging that James Washington executed a check for the payment of $9,000 payable to the order of Bonilla, and delivered the check to him. It was further alleged that the check was endorsed by Bonilla and deposited in his account with the plaintiff bank. The bank presented the check for payment to the drawee bank and payment was refused by reason of insufficient funds. The complaint was filed November 4, 1977, and the defendant Washington having failed to serve or file an answer or motion within the time prescribed by rule, a default judgment was entered against him. The plaintiff bank did not pursue the default judgment to final judgment. The defendant Washington waited until February 21, 1978, to file his motion to set aside the default.
Washington urges that the allegations in his proffered answer to the bank’s claim and his counterclaim against Bonilla that plaintiff bank and co-defendant Bonilla had committed acts of misconduct and misrepresentation entitled him under Fla.R.Civ.P. 1.540(b) to have the default set aside. The provisions of such rule afford a basis to vacate a default judgment only when it is alleged that by reason of an adverse party’s misconduct or misrepresentation the party was induced not to timely file his answer or otherwise plead. Neither the motion nor any material in the record attempts to set forth any reason why Washington did not file his answer or otherwise plead within the time prescribed by the Rules of Civil Procedure.
A motion to set aside a default judgment is addressed to the sound discretion of the trial court. However, before such discretion may be properly exercised, the motion itself must set forth both a meritorious defense and a reason that would excuse the party’s neglect in failing to file his answer or otherwise plead within the time prescribed by applicable rule. See Allen v. Wright, 350 So. 2d 111 (Fla. 1st DCA 1977).
Although the courts favor the disposition of a case based upon its merits rather than upon the application of a rule of procedure, in order for this to be accomplished the courts must have the reasonable cooperation of the parties to the litigation in complying with the orderly rules of procedure. Washington having failed in his motion to allege facts which would have excused his neglect as to timely filing his pleading, neither this court nor the trial court may presume the existence of facts which would excuse his neglect.
Therefore, based upon the record before this court, we conclude that the lower court abused its discretion in setting aside the default against Washington. The order setting aside such default is REVERSED with directions to reinstate the same.
McCORD, C. J., and MILLS, J., concur.
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Tremblay v. Marck, 378 So. 2d 855 (Fla. 4th DCA 1979)…e to the trial court with directions to allow the appellees to amend their motion to vacate and allege, if they can, a meritorious defense. REVERSED AND REMANDED. MOORE and BERANEK, JJ., concur. . Atlantic Bank of West Jacksonville v. Washington, 360 So. 2d 1145 (Fla. 1st DCA 1978); Allen v. Wright, 350 So. 2d 111 (Fla. 1st DCA 1977); Perry v. University Cabs, Inc., 344 So. 2d 914 (Fla. 3rd DCA 1977); Claffey v. Serafino, 338 So. 2d 270 (Fla. 2nd DCA 1976). . The remand in this case to allow appellee to am…
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Farmers Prod. Credit Ass'n v. Emperador Seafoods, Inc., 416 So. 2d 889 (Fla. 4th DCA 1982)…County National Bank of North Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981). Excusable neglect is a necessary prerequisite to setting aside a final judgment entered after default. Atlantic Bank of West Jacksonville v. Washington, 360 So. 2d 1145 (Fla. 1st DCA 1978); Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978). Here the record reflects that appel-lees were served with the complaint but failed to respond and therefore the trial court entered a…
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Fla. E. Coast Deliveries, Inc. v. Adalberto A. Hernandez, 568 So. 2d 536 (Fla. 3d DCA 1990)…PER CURIAM. AFFIRMED. Lacore v. Giralda Bake Shop, 407 So. 2d 275 (Fla. 3d DCA 1981); Cricket Club, Inc. v. Basso, 384 So. 2d 908 (Fla. 3d DCA 1980); Atlantic Bank of West Jacksonville, 360 So. 2d 1145 (Fla. 1st DCA 1978); Allen v. Wright, 350 So. 2d 111 (Fla. 1st DCA 1977).…
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