Opinion
No. 82-1561.
July 28, 1983.
Appeal from the Orange County Circuit Court, Frederick Pfeiffer, J.
Gary M. Dunkel and Douglas S. Lambeth, Fort Lauderdale, for appellants.
Malcolm S. Greenfield, Casselberry, for appellee.
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 ADJUDGED 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.
ORFINGER, C.J., and COWART, J., concur.