Opinion
No. 87-2689.
April 5, 1988.
An Appeal from a non-final order from the Circuit Court for Dade County; Edward N. Moore, Judge.
Daniels Hicks and Sam Daniels, Miami, for appellant.
Gilbride, Heller Brown and Dyanne E. Feinberg; Michael Lozoff, Miami, for appellee.
Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
The record reflects that the appellant diligently moved to vacate the default and default judgment entered against it and that the complaint against the appellant wholly fails to state a cause of action. As the appellee concedes, a default judgment entered upon a complaint which wholly fails to state a cause of action must be vacated upon a diligently filed motion to vacate even without a showing of excusable neglect in failing to timely answer the complaint. See Sunshine Security Detective Agency v. Wells Fargo Armored Services Corp., 496 So.2d 246 (Fla. 3d DCA 1986); Fernandez-Aguiree v. Gall, 484 So.2d 1286 (Fla. 3d DCA 1986). Therefore, we reverse the default and default judgment and remand the case for further proceedings.
Reversed and remanded.