MELODY TOURS, INC., M & M SERVICES, INC., MIXSON, MITCHEM & COMPANY, INC., MIXSON & MITCHEM OMNIGLOBALS, C. A. MITCHEM AND JOHN B. MIXSON, III, APPELLANTS,
v.
GRANVILLE MARKET LETTER, INC., APPELLEE
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The appellate court reversed a summary judgment based on deemed admissions resulting from appellants' late response to requests for admissions, holding that under the amended Rule 1.370(b), courts may permit withdrawal of admissions when doing so serves the presentation of the merits and the opposing party cannot show prejudice.
A court may permit withdrawal of admissions resulting from failure to timely respond to requests for admissions under Rule 1.370(b) when: (1) withdrawal would serve the presentation of the case on its evidentiary merits, and (2) the party who obtained the admissions cannot satisfy the court that withdrawal would prejudice it in maintaining its action. The strict default judgment standard does not apply.
[1] A court may permit withdrawal or amendment of answers to requests for admissions if it serves the presentation of the merits and the requesting party is not prejudiced.
[2] Mere inadvertence is insufficient to excuse a failure to timely answer requests for admissions when the rule has been amended to allow for withdrawal or amendment under c…
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Join FLexlaw to unlock all legal intelligence“all of present section (b) of rule 1.370, authorizing courts to permit withdrawal or amendment of answers to requests for admissions when that action will serve the presentation of the merits and the party who obtained the admissions fails to satisfy the court that such withdrawal or amendment will prejudice him in maintaining his action or defense on its merits, was added after Farish, effective January 1, 1973”
Establishes that the amended rule provides a more liberal standard for permitting withdrawal of admissions than the pre-amendment Farish case suggested
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Join FLexlaw to unlock all legal intelligenceAppellants' counsel inadvertently failed to timely file answers to requests for admissions covering all factual allegations of the complaint, respondi…
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COWART, Judge.
This case involves the right of a litigant to avoid admissions resulting from failure to timely answer a request for admissions served under Florida Rule of Civil Procedure 1.370.
Appellants’ counsel inadvertently neglected to timely file answers to requests for admissions, which admissions covered all of the factual allegations of the appellee’s complaint. Appellants responded to the requests for admissions 77 days late. Appellants moved for permission to file a belated response to the requests for admissions; appellee moved for summary judgment based on the admissions. The trial court ruled that in determining whether a belated response to requests for admissions should be permitted the standard should be the same as in setting aside a default judgment and that, mere inadvertence being insufficient for the latter, it was insufficient for the former. Accordingly, the trial court denied appellants an opportunity to avoid the effect of the admissions and relied on the admissions to enter the summary judgment against appellants which is the subject of this appeal.
There is sound logic in the trial judge’s reasoning analogizing the legal problem of granting relief from the result of a failure to timely answer a request for admissions with the similar legal problem of granting relief from a default which was the result of a failure to timely answer a complaint. The trial judge’s reasoning would be compelling in this case but for the fact that the law seems to have developed in another, more liberal, direction.
The trial court’s holding is in accordance with Farish v. Lum’s, Inc., 267 So. 2d 325 (Fla.1972), in which the Florida Supreme Court held that noncompliance with rule 1.370 could not be excused “on a base allegation of inadvertence.” Farish, 267 So. 2d at 327. However, all of present section (b) of rule 1.370, authorizing courts to permit withdrawal or amendment of answers to requests for admissions when that action will serve the presentation of the merits and the party who obtained the admissions fails to satisfy the court that such withdrawal or amendment will prejudice him in maintaining his action or defense on its merits, was added after Farish, effective January 1, 1973.1 Accordingly, in light of this rule amendment, Farish is of doubtful applicability as authority. See Love v. Allis-Chalmers Corp., 362 So. 2d 1037 (Fla. 4th DCA), cert. dismissed, 366 So. 2d 879 (Fla.1978).
Since appellants’ counsel did not intend to admit the facts in question, the withdrawal of their technical admissions would, of course, serve to facilitate the presentation of the case on its evidentiary merits. Ap-pedants’ response to the requests for admissions, while very late, was made before the pleadings were closed, before the entry of a pre-trial order and before any trial date had been set. Appellee presented no other matter in an attempt to satisfy the trial court that a withdrawal of the technical admissions would prejudice it in maintaining its action on its merits. Accordingly, following Love, we reverse the summary judgment and remand the cause with directions to allow appellants to file their sworn answers to the requests for admissions and for further proceedings.
REVERSED and remanded.
ORFINGER and SHARP, JJ., concur. . See In re Rules of Civil Procedure, 265 So. 2d 21, 36-37 (Fla.1972).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Mort Sher v. Liberty Mut. Ins. Co., 557 So. 2d 638 (Fla. 3d DCA 1990)…cilitate the presentation of the case on its evidentiary merits.” DeAtley v. McKinley, 497 So. 2d 962, 963 (Fla. 1st DCA 1986); Pelkey v. Commander Motel Corp., 510 So. 2d 965 (Fla. 4th DCA 1987); Melody Tours, Inc. v. Granville Market Letter, Inc., 413 So. 2d 450 (Fla. 5th DCA 1982); Love v. Allis-Chalmers Corp., 362 So. 2d 1037 (Fla. 4th DCA 1978); Fla.R.Civ.P. 1.370(b); but see Morgan v. Thomson, 427 So. 2d 1134 (Fla. 5th DCA 1983) (relief from effect of admissions may not be granted unless party files a p…
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Wood v. Fortune Ins. Co., 453 So. 2d 451 (Fla. 4th DCA 1984)…edure are flexible enough to expressly provide for late filing of responses. Tardy responses may be and have been excused. See Love v. Allis-Chalmers Corp., 362 So. 2d 1037 (Fla. 4th DCA 1978) and Melody Tours, Inc. v. Granville Market Letter, Inc., 413 So. 2d 450 (Fla. 5th DCA 1982). This opinion is not to be construed as a license for indifference and inefficiency. We could have reversed and created a contest between the attorney and its client; but that does not seem appropriate here. Hopefully, the indiv…
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Morgan v. Thomson, 427 So. 2d 1134 (Fla. 5th DCA 1983)…e to answer. The rule provides a liberal standard for the trial court to grant relief by permitting withdrawal or amendment and this [*1135] court has liberally construed that provision. See Melody Tours, Inc. v. Granville Market Newsletter, Inc., 413 So. 2d 450 (Fla. 5th DCA 1982). However, a motion must be made for relief from the admissions automatically resulting from a failure to timely answer a request for admissions. In this regard a trial judge cannot err until he rules on a proper motion for relief…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Farish v. Lum's, Inc., 267 So. 2d 325 (Fla. 1972)
- In re THE Fla. BAR: Rules of Civil Procedure, 265 So. 2d 21 (Fla. 1972)
- Love v. Allis-Chalmers Corp., 362 So. 2d 1037 (Fla. 4th DCA 1978)