ROBERT S. WAITE, PETITIONER,
v.
WELLINGTON BOATS, INC., RESPONDENT

Fla. 1st DCA | 1984-11-16
No. BC-142
SHIVERS and WENTWORTH, JJ., concur.
459 So. 2d 431 Florida District Court of Appeal, First District (1984) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Waite, a defendant who hired an attorney only to stipulate to dismissal of his counterclaim, subsequently filed an amended counterclaim signed only by himself without his attorney's signature. The trial court struck the pleading under Florida Rule of Judicial Administration 2.060(d) requiring attorney signatures. The appellate court affirmed, holding that an attorney of record retains exclusive control over proceedings unless formally withdrawn by court approval.


Holding

The trial court properly struck the pleading. An attorney of record has exclusive management and control of an action so long as he remains counsel of record, and withdrawal of counsel may be permitted only by court approval. Until the attorney is formally relieved by appropriate motion, pleadings must be signed by the attorney in conformance with the rule.


Headnotes

[1] A pleading filed by a party represented by an attorney of record must be signed by that attorney.

[2] A trial court may strike a pleading that is not signed by the party's attorney of record.

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Key Quotes

“A party who appears in an action by an attorney may be heard only through the attorney who, so long as he remains the attorney of record, has the exclusive management and control of the action and of all steps and proceedings taken therein to enforce the rights and remedies of his client.”

Establishes the fundamental principle that an attorney of record has exclusive control over a represented party's proceedings.

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Facts & Procedural History

Waite initially represented himself pro se and filed an answer and counterclaim. After Wellington Boats moved to dismiss the counterclaim, Waite hired…

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Opinion of the Court
NIMMONS, Judge.

NIMMONS, Judge.

This is a certiorari proceeding in which petitioner, Robert S. Waite (a defendant below), seeks review of an order of the trial court striking his “Amended Counterclaim and Additional Complaint” for failure of the pleading to bear the signature of Waite’s counsel of record.

Earlier in the lower court, proceedings, Waite was unrepresented and was acting pro se. He had filed an answer and counterclaim. In response thereto, counsel for Wellington Boats, Inc., the plaintiff below, filed a motion to dismiss the counterclaim. Prior to the hearing on that motion, Waite employed an attorney who, at Waite’s request, entered into a written stipulation with Wellington’s counsel agreeing to the entry of an order granting Wellington’s motion to dismiss and allowing Waite fifteen days within which to file an amended counterclaim. The stipulation, which was prepared by Waite’s attorney, was signed by his attorney as well as by counsel for Wellington and was filed in the lower court proceedings. Pursuant thereto, the trial court entered an order dismissing the counterclaim with leave to file an amended counterclaim within fifteen days.

Subsequently, the above referred “Amended Counterclaim and Additional Complaint” was filed but it was signed only by Waite and not his attorney of record. In response, Wellington filed a motion to strike pursuant to Fla.R.Jud.Admin. 2.060(d). That rule requires all pleadings to be signed by the party’s attorney. The rule further provides that the court may strike any pleading not signed by the party’s attorney of record. That is what the court did in this case after hearing on Wellington’s motion to strike.

Neither Waite, an Atlanta resident, nor his attorney were present at the hearing. Prior thereto, Waite filed a pro se response to the motion to strike in which he stated inter alia that he had secured the services of “one of his attorneys” only to arrange a disposition of Wellington’s earlier motion to dismiss by consent of the parties. His response further stated that he was “formally represented only by himself”. He further requested that the hearing be rescheduled because his busy medical practice would not permit him to be present on short notice. However, at no time, either prior or subsequent to the hearing on the motion to strike, was there any motion filed by Waite or his counsel of record seeking permission of the trial court for the withdrawal of counsel. There is no indication in the record of this case as to any reason why Waite’s attorney, who was properly furnished notice of the hearing as counsel of record, could not have been present at the hearing.

A party who appears in an action by an attorney may be heard only through the attorney who, so long as he remains the attorney of record, has the exclusive management and control of the action and of all steps and proceedings taken therein to enforce the rights and remedies of his client. 7 Am.Jur.2d Attorneys at Law §§ 6,149. Withdrawal of a party’s counsel of record may be permitted only by approval of the court. Fla.R.Jud.Admin. 2.060(i). And notice of a client’s application to the court for discharge of his attorney should be given to the attorney just as an attorney seeking withdrawal should give notice to his client. Feuer v. Feuer, 156 Fla. 117, 22 So. 2d 641 (1945).

Until such time as Waite’s attorney, pursuant to an appropriate motion, is relieved by the trial court as counsel of record, the court may properly strike pleadings which are not subscribed by such counsel in conformance with the applicable rule.

The petitioner has failed to demonstrate that the trial court departed from the es sential requirements of the law in striking the subject pleading. We do not have before us, and therefore do not address, the question of either: (1) whether the trial court should favorably entertain a motion for leave to file an amended counterclaim in the event Waite’s counsel of record were to file such a motion; or (2) whether, in the event the trial court, pursuant to appropriate motion, discharges Waite’s counsel of record, the court should grant a pro se motion seeking leave to file an amended counterclaim.

The certiorari petition is Denied.

SHIVERS and WENTWORTH, JJ., concur.


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Citator

Cited By

  • Brown v. Vt. Mut. Ins. Co., 614 So. 2d 574 (Fla. 1st DCA 1993)
    …ng litigation to represent a party, that attorney cannot withdraw from the case pursuant to discharge by the client without [*580] leave of court granted by order after due notice to both the attorney and the client. Waite v. Wellington Boats, Inc., 459 So. 2d 431 (Fla. 1st DCA 1984); Feuer v. Feuer, 22 So. 2d 641 (Fla.1945). Thus, notwithstanding the notification to Evans by Brown and City Federal that his employment as attorney was terminated, Evans continued to have responsibility for this litigation until…
  • Prime Orlando Props., Inc. v. Dep't of Bus. Reg., 502 So. 2d 456 (Fla. 1st DCA 1986)
    …s no office, leaving it at his usual place of abode with some person of his family above 15 years of age and informing such person of the contents. Service by mail shall be complete upon mailing. . See, for example, Waite v. Wellington Boats, Inc., 459 So. 2d 431, 432 (Fla. 1st DCA 1984); Reizen v. Florida National Bank at Gainesville, 237 So. 2d 30, 32 (Fla. 1st DCA 1970).…

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