Hurd v. Al Springer Roofing, Inc.

District Court of Appeal of Florida

Hurd v. Al Springer Roofing, Inc.

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

CourtDistrict Court of Appeal of Florida

DecidedJune 21, 1988

DocketNo. 88-776

StatusPublished

This text of 526 So. 2d 784 (Hurd v. Al Springer Roofing, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hurd v. Al Springer Roofing, Inc., 526 So. 2d 784, 13 Fla. L. Weekly 1455, 1988 Fla. App. LEXIS 2558, 1988 WL 62014 (Fla. Ct. App. 1988).

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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.

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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.

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526 So. 2d 784, 13 Fla. L. Weekly 1455, 1988 Fla. App. LEXIS 2558, 1988 WL 62014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurd-v-al-springer-roofing-inc-fladistctapp-1988.

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