Newkirk v. FLA. INS. GUARANTY ASS'N., INC.

District Court of Appeal of Florida

Newkirk v. FLA. INS. GUARANTY ASS'N., INC.

464 So. 2d 1256, 10 Fla. L. Weekly 470

District Court of Appeal of Florida·Decided February 19, 1985·No. 84-772·Published·Cited by 3 cases

Opinion

464 So.2d 1256 (1985)

Sylvia NEWKIRK, Appellant,
v.
FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., a Florida Corporation, and Pic `N' Pay Supermarket # 9, Inc., a Florida Corporation, d/b/a Earl's Market, Appellees.

No. 84-772.

District Court of Appeal of Florida, Third District.

February 19, 1985. Rehearing Denied April 1, 1985.

Wolfson & Diamond and Michael J. Schwartz, Miami Beach, for appellant.

Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellees.

Before HENDRY, BASKIN and JORGENSON, JJ.

PER CURIAM.

Under the facts herein, section 631.67, Florida Statutes (1983), did not furnish a basis for vacating the default judgment in favor of Newkirk. Appellees were required to proceed under Florida Rule of Civil Procedure 1.540(b). Appellees' motions to vacate the default judgment did not sufficiently allege excusable neglect, nor did they aver the existence of a meritorious defense. Further, the motions were not supported by affidavit or other sworn statement. See B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981). Thus, the trial court erred in setting aside the judgment in favor of Newkirk.

Accordingly, we reverse and remand with directions to reinstate the judgment.

Reversed and remanded with directions.

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464 So.2d 1256 (1985)

Sylvia NEWKIRK, Appellant,
v.
FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., a Florida Corporation, and Pic `N' Pay Supermarket # 9, Inc., a Florida Corporation, d/b/a Earl's Market, Appellees.

No. 84-772.

District Court of Appeal of Florida, Third District.

February 19, 1985. Rehearing Denied April 1, 1985.

Wolfson & Diamond and Michael J. Schwartz, Miami Beach, for appellant.

Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellees.

Before HENDRY, BASKIN and JORGENSON, JJ.

PER CURIAM.

Under the facts herein, section 631.67, Florida Statutes (1983), did not furnish a basis for vacating the default judgment in favor of Newkirk. Appellees were required to proceed under Florida Rule of Civil Procedure 1.540(b). Appellees' motions to vacate the default judgment did not sufficiently allege excusable neglect, nor did they aver the existence of a meritorious defense. Further, the motions were not supported by affidavit or other sworn statement. See B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981). Thus, the trial court erred in setting aside the judgment in favor of Newkirk.

Accordingly, we reverse and remand with directions to reinstate the judgment.

Reversed and remanded with directions.

Newkirk v. FLA. INS. GUARANTY ASS'N., INC., 464 So. 2d 1256, 10 Fla. L. Weekly 470 (Fla. Ct. App. 1985).

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Opinion

Sylvia NEWKIRK, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., a Florida Corporation, and Pic `N' Pay Supermarket # 9, Inc., a Florida Corporation, d/b/a Earl's Market, Appellees.

Related

Sylvia NEWKIRK, Appellant,
v.
FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., a Florida Corporation, and Pic `N' Pay Supermarket # 9, Inc., a Florida Corporation, d/b/a Earl's Market, Appellees.