435 So. 2d 393 | Fla. Dist. Ct. App. | 1983
Appellant, Jerry’s Pizza King International, Inc., appeals from an order denying its motion to vacate a default judgment. In the order, the trial court stated:
After having heard arguments of counsel and having specifically considered the questions of excusable neglect and meritorious defense, I hereby find that no meritorious defense is exhibited by the documents and pleadings in the court file, and it is thereupon ORDERED and AD*394 JUDGED that the Defendants’ motion to set aside the default judgment be and the same is hereby DENIED.
The trial court may properly grant a motion to vacate a default judgment where the movant establishes a meritorious defense and a legal excuse for failure to comply with the rules. An absence of either precludes setting aside a default judgment. L.B.T. Corp. v. Camacho, 429 So.2d 88 (Fla. 5th DCA 1983); TPM Constructors, Inc. v. Twin Coast Title, Inc., 425 So.2d 580 (Fla. 5th DCA 1982).
The trial judge based his denial on a lack of meritorious defense. This finding is incorrect, since such a defense is clearly evinced from the proposed answer filed with Jerry’s motion below. The trial court failed to make a finding on whether or not excusable neglect was present. This question is determinative of the instant case. If excusable neglect can be shown, the motion to vacate should be granted; if not, the denial was proper. Therefore, we reverse and remand for a determination by the trial court of whether excusable neglect is present.
REVERSED and REMANDED with instructions.