Hurd v. Al Springer Roofing, Inc.

526 So. 2d 784, 13 Fla. L. Weekly 1455, 1988 Fla. App. LEXIS 2558, 1988 WL 62014

Opinion

PER CURIAM.

The defendant appeals an order denying his motion to vacate a clerk’s default. We have jurisdiction. Fla.R.App.P. 9.130(a)(3)(C)(iv).

The proceeding below was commenced to foreclose a mechanic’s lien against the property of a customer. A clerk’s default was procured the first day permissible for failure of the defendant to file a timely answer or other responsive pleading. The day following, the defendant’s previously retained counsel filed a motion to vacate the default (and tendered for filing an answer containing affirmative defenses together with a counterclaim) which contained an affidavit reciting that the answer or responsive pleadings were delayed because defense counsel suffered a sprained back. At the hearing on the motion to vacate the affidavit was uncontroverted. The pleadings and exhibits tendered demonstrate a colorable defense of accord and satisfaction. When excusable neglect and a meritorious defense are presented, it is usually error to deny a motion to vacate a default. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Pedro Realty v. Silva, 399 So.2d 367 (Fla. 3d DCA 1981).

Reversed with directions to vacate the default.