Abel, Tony & Aldo Creative Group, Inc. v. Friday Night Investors, Inc.

419 So. 2d 1135, 1982 Fla. App. LEXIS 21179

• Court: District Court of Appeal of Florida
• Decided: September 21, 1982
• Docket: 82-763
• Status: Published

Opinion

419 So.2d 1135 (1982)

ABEL, TONY AND ALDO CREATIVE GROUP, INC., Appellant,
v.
FRIDAY NIGHT INVESTORS, INC., Appellee.

No. 82-763.

District Court of Appeal of Florida, Third District.

September 21, 1982. Rehearing Denied October 20, 1982.

Leonardo P. Mendez, Miami, for appellant.

Sams, Gerstein & Ward and Paul M. Rashkind, Miami, for appellee.

Before SCHWARTZ, BASKIN and JORGENSON, JJ.

SCHWARTZ, Judge.

The order vacating the final default judgment is reversed for reinstatement of the judgment because neither of the two indispensable prerequisites for granting that relief was demonstrated below. The affidavit of the defendant's president that he had referred the complaint to an attorney whom he "thought" had responded was insufficient to demonstrate excusable neglect, particularly since the plaintiff subsequently gave notice, which was not responded to, of its intention to seek a default because no answer had been filed. Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978); Sun Finance Corp. v. Friend, 139 So.2d 484 (Fla. 3d DCA 1962). Moreover, the bare statement that the defendant had an unspecified "complete defense to the Complaint," accompanied by a motion to dismiss claiming only technical deficiencies, was manifestly insufficient to show the existence of a meritorious defense. Pedro Realty, Inc. v. Silva, 399 So.2d 367 (Fla. 3d DCA 1981).