Tremblay v. Marck

• Court: Florida District Court of Appeals
• Writing for the Court: DOWNEY
• Citation: Tremblay v. Marck, 378 So.2d 855 (Fla. App. 1979)
• Decision Date: 19 December 1979
• Docket Number: No. 78-2769,78-2769
• Parties: Jean Marc TREMBLAY and Master Realty, Inc., Appellants, v. Donald L. MARCK and Constance G. Marck, his wife, Appellees.

Page 855

378 So.2d 855

Jean Marc TREMBLAY and Master Realty, Inc., Appellants, v. Donald L. MARCK and Constance G. Marck, his wife, Appellees.

No. 78-2769.

District Court of Appeal of Florida, Fourth District.

Dec. 19, 1979.

Joseph DeGance of Jansen & DeGance, P.A., Fort Lauderdale, for appellants.

John L. Sutton, Pompano Beach, for appellees.

DOWNEY, Chief Judge.

The issue presented on this appeal concerns the trial court's exercise of discretion in setting aside a default and final judgment in favor of appellants. In our opinion, the trial judge's action constituted an abuse of discretion.

Appellants sued appellees for specific performance. Although served with process, appellees failed to answer and in due course a default was entered, followed by a final judgment for appellants. Approximately one week later appellees filed a "Motion to Rescind Order of Default" and a "Motion For Stay of Execution." Said motions alleged that C. B. Hankel, III, an associate of counsel for appellees, had agreed to represent appellees in their litigation. However, several weeks later Mr. Hankel disappeared during a flight in North Florida and thus no timely answer was filed. Present counsel alleged that the appellees had a valid defense but "because of the very short notice to the undersigned" he was unable to draft an adequate answer. No adequate pleading was filed to support counsel's allegation of a meritorious defense.

Although the trial judge recognized that it was necessary to show a meritorious defense, he vacated the default and final judgment, stating, among other things, in the order under review:

5. This court is not unmindful of the case law as set forth in Perry vs. University Cabs, Inc., 344 So.2nd (914), but finds because of the exceptional nature of the circumstances this court shall vacate the default and subsequent final judgment.

The simple issue presented is whether, absent an adequate showing of a meritorious defense, the vacation of the default and final judgment constituted an abuse of discretion. Under the law of this jurisdiction it clearly constituted such an abuse.

In fairness to the trial judge, we believe he was overly impressed by the strong case of excusable neglect. What could be more persuasive of that fact than the sudden unexplained disappearance of counsel after he had undertaken to represent appellees? However, the rule of law is clear, and the trial judge expressly acknowledged his familiarity with that rule, that there is a dual aspect to a motion to set aside a default. It is incumbent upon the movant to properly allege excusable neglect and a meritorious defense not just allege those conclusions. The movant must allege ultimate facts so that the trial judge can determine the neglect in question...