Jerry's Pizza King International, Inc. v. Peoples Acceptance Corp.

COBB, Judge. Appellant, Jerry’s Pizza King International, Inc., appeals from an order denying its motion to vacate a default judgment. In the order, the trial court stated: After having heard arguments of counsel and having specifically considered the questions of excusable neglect and meritorious defense, I hereby find that no meritorious defense is exhibited by the documents and pleadings in the court file, and it is thereupon ORDERED and AD [394] JUDGED that the Defendants’ motion to set aside the default judgment be and the same is hereby DENIED. The trial court may properly grant a motion to vacate a default judgment where the movant establishes a meritorious defense and a legal excuse for failure to comply with the rules. An absence of either precludes setting aside a default judgment. L.B.T. Corp. v. Camacho, 429 So.2d 88 (Fla. 5th DCA 1983); TPM Constructors, Inc. v. Twin Coast Title, Inc., 425 So.2d 580 (Fla. 5th DCA 1982). The trial judge based his denial on a lack of meritorious defense. This finding is incorrect, since such a defense is clearly evinced from the proposed answer filed with Jerry’s motion below. The trial court failed to make a finding on whether or not excusable neglect was present. This question is determinative of the instant case. If excusable neglect can be shown, the motion to vacate should be granted; if not, the denial was proper. Therefore, we reverse and remand for a determination by the trial court of whether excusable neglect is present. REVERSED and REMANDED with instructions. ORFINGER, C.J., and COWART, J., concur.