Florida Specialized Carriers, Inc. v. Tierra Construction Co.

District Court of Appeal of Florida

Florida Specialized Carriers, Inc. v. Tierra Construction Co.

632 So. 2d 282, 1994 Fla. App. LEXIS 1340, 1994 WL 54807

District Court of Appeal of Florida·Decided February 25, 1994·No. No. 93-2085·Published·Cited by 3 cases

Opinion

PER CURIAM.

This is an appeal from an order setting aside a final default judgment. Entitlement to that relief requires the movant to establish both excusable neglect and a meritorious defense. Kindle Trucking Co. v. Mannar Corp., 468 So.2d 502 (Fla. 5th DCA 1985). Although the appellees below alleged a meritorious defense, the trial judge did not find, nor would the record support, a finding of excusable neglect. To the contrary, the record shows that over a period of ten months, the corporation and the pro se ap-pellee consistently failed to attend court hearings and depositions and ignored the court’s order to answer the amended complaint.

An order setting aside a final judgment in the absence of any evidence demonstrating excusable neglect constitutes a gross abuse of discretion mandating reversal. Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977); Tire Kingdom, Inc. v. Bowman, 480 So.2d 221 (Fla. 5th DCA 1985); TPM Constructors, Inc. v. Twin Coast Tile, Inc., 425 So.2d 580 (Fla. 5th DCA), review denied, 434 So.2d 889 (Fla.1983). On remand, the trial court is instructed to reinstate the final judgment.

REVERSED and REMANDED with instructions.

HARRIS, C.J., and GOSHORN and THOMPSON, JJ., concur.

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PER CURIAM.

This is an appeal from an order setting aside a final default judgment. Entitlement to that relief requires the movant to establish both excusable neglect and a meritorious defense. Kindle Trucking Co. v. Mannar Corp., 468 So.2d 502 (Fla. 5th DCA 1985). Although the appellees below alleged a meritorious defense, the trial judge did not find, nor would the record support, a finding of excusable neglect. To the contrary, the record shows that over a period of ten months, the corporation and the pro se ap-pellee consistently failed to attend court hearings and depositions and ignored the court’s order to answer the amended complaint.

An order setting aside a final judgment in the absence of any evidence demonstrating excusable neglect constitutes a gross abuse of discretion mandating reversal. Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977); Tire Kingdom, Inc. v. Bowman, 480 So.2d 221 (Fla. 5th DCA 1985); TPM Constructors, Inc. v. Twin Coast Tile, Inc., 425 So.2d 580 (Fla. 5th DCA), review denied, 434 So.2d 889 (Fla.1983). On remand, the trial court is instructed to reinstate the final judgment.

REVERSED and REMANDED with instructions.

HARRIS, C.J., and GOSHORN and THOMPSON, JJ., concur.

Florida Specialized Carriers, Inc. v. Tierra Construction Co., 632 So. 2d 282, 1994 Fla. App. LEXIS 1340, 1994 WL 54807 (Fla. Ct. App. 1994).

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