Abray Const. Co., Inc. v. Star Swimming Pools, Inc., 82-2104

• Court: Florida District Court of Appeals
• Writing for the Court: SCHOONOVER; SCHEB, A.C.J., and CAMPBELL
• Citation: Abray Const. Co., Inc. v. Star Swimming Pools, Inc., 426 So.2d 1046 (Fla. App. 1983)
• Decision Date: 21 January 1983
• Docket Number: No. 82-2104,82-2104
• Parties: ABRAY CONSTRUCTION COMPANY, INC., Appellant, v. STAR SWIMMING POOLS, INC., and Richard Foburg, Appellees.

Page 1046

426 So.2d 1046

ABRAY CONSTRUCTION COMPANY, INC., Appellant, v. STAR SWIMMING POOLS, INC., and Richard Foburg, Appellees.

No. 82-2104.

District Court of Appeal of Florida Second District.

Jan. 21, 1983.

Rehearing Denied Feb. 18, 1983.

George J. Felos of Felos & Felos, Dunedin, for appellant.

James A. Helinger, Jr., Clearwater, for appellees.

SCHOONOVER, Judge.

This is an interlocutory appeal from an order vacating a final judgment based upon a default. We reverse.

Appellant, Abray Construction Company, plaintiff below, filed a complaint for damages against the appellees, Star Swimming Pools, Inc. and Richard Foburg. The appellees failed to respond to the complaint within twenty days after service of process, and the appellant obtained a default from the clerk. Shortly thereafter a final judgment was entered against the appellees.

Five days later, the appellees filed an unsworn motion to vacate the default and judgment. The motion claimed excusable neglect and alleged that the defendants had a meritorious defense in the form of a substantial counterclaim against the appellant. It was accompanied by an affidavit which attempted to set forth the facts upon which the court could find excusable neglect.

Even though there is a long standing policy of liberality towards the vacation of defaults so that the merits of the cause may be reached, Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978), it is the movant's burden to establish both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense. Claffey v. Serafino, 338 So.2d 270 (Fla. 2d DCA 1976).

Because the appellees failed in their attempt to establish a meritorious defense, it is not necessary for us to determine if the appellees' affidavit set forth sufficient facts to carry their burden of establishing a legal excuse, i.e., excusable neglect.

The only reference in the record relating to a meritorious defense is the allegation in the unsworn motion that the appellees had a meritorious defense in the form of a substantial counterclaim. This allegation standing alone is insufficient.

It is not permissible to allege the conclusion that the defaulting party's negligence was excusable without setting forth facts to support that conclusion. Likewise it is impermissible to allege the conclusion that a meritorious defense exists without alleging ultimate facts to support that conclusion. Tremblay v....