TOM BROOKER, FOR HIMSELF AND ON BEHALF OF ALL OTHER TAXPAYERS IN THE CITY OF NAPLES, FLORIDA, SIMILARLY SITUATED, APPELLANT,
v.
W. ROY SMITH, INDIVIDUALLY, AND AS MAYOR OF THE CITY OF NAPLES, FLORIDA, A MUNICIPAL CORPORATION, APPELLEE
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A taxpayer sued the Mayor of Naples for allegedly selling petroleum products to the city in violation of its charter and state law. The trial court heard the mayor's motion to sever and try threshold issues of unclean hands and abuse of process without notice to the plaintiff, and the appellate court reversed, holding that due process requires notice and an opportunity to be heard before such motions.
The trial court erred in hearing the motion without notice to the plaintiff. Due process requires that notice be given to the opposing party before hearing such a motion.
“We hold that the lower court was in error in hearing the motion without notice to the plaintiff. Due process requires such a notice.”
The court's holding on the central issue that notice and an opportunity to be heard are required before granting motions in adversary proceedings.
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Join FLexlaw to unlock all legal intelligenceTom Brooker, a taxpayer, filed an equity suit against W. Roy Smith, individually and as Mayor of the City of Naples, alleging that Smith had sold vari…
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The appellant filed a suit in equity against W. Roy Smith, individually, and as Mayor of the City of Naples, Florida. The complaint alleged that the defendant, as Mayor of the City of Naples had, contrary to the charter of the City of Naples and of the statutes of the State of Florida, sold various petroleum products to the city. The defendant, W. Roy Smith, on tííe 10th of February, 1958, filed the following motion :
“Comes now the defendant, W. Roy Smith, individually, and makes known to the Court:
“1. The plaintiff, Tom Brooker, comes into this Court with unclean hands.
“2. The plaintiff, Tom Brooker, is by this suit abusing the process of this Court in such manner as to reflect upon the essential dignity of the Court.
“Wherefore, the defendant moves the court: (a) To sever and initially try the said issues; and (b) To stay all other proceedings herein until the trial of such issues and the ruling of the Court thereon.”
On the' same date (February 10, 1958) the Circuit Judge entered the following order:
“This cause came on before me on this day to be heard on the Motion of *608the defendant, W. Roy Smith, individually, raising the issues of unclean hands and abuse of the process of this Court on the part of the plaintiff, Tom Brooker; and, upon consideration thereof, It Is Ordered,
“1. The issues raised in such Motion are hereby severed and, before any other proceedings herein, such issues shall be tried before the Court on the 27th day of February, 1958, beginning at 10:30 o’clock A. M. at Chambers of Circuit Court in Everglades, Collier County, Florida.
“2. All other proceedings in this cause are stayed until said trial and the ruling of the Court in respect thereto.
“3. Counsel for the Movant shall this day serve copies of this Order upon counsel for the plaintiff, Tom Brooker, and the City Attorney of City«of Naples, Florida, by mail in the substantial manner prescribed by Rule 1.4(f) of the 1954 Florida Rules of Civil Procedure [30 F.S.A.].”
This interlocutory appeal is taken from the above order. The appellant states the following point:
“Whether it is error and a denial of due process of law for a Court to enter an ex parte order in an adversary proceeding ?”
The record discloses that the motion of the defendant and the order entered thereon was made without notice to the plaintiff.
The single issue before the court on this appeal is the correctness of the ruling of the court below in setting the cause down for trial on the single issue of unclean hands without giving notice of the hearing to opposing counsel. We have not considered the sufficiency of the pleadings filed in this case and leave such to the chancellor on the return of this record to him.
We hold that the lower court was in error in hearing the motion without notice to the plaintiff. Due process requires such a notice. See Mayflower Inv. Co. v. Brill, 1939, 137 Fla. 287, 188 So. 205; Town of Lake Hamilton v. Hughes, 1948, 160 Fla. 646, 36 So.2d 260.
Reversed.
SCANNER, C. J., and ALLEN and SHANNON, JJ., concur.
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Harris & Co. Advertising, Inc. v. Republic OF Cuba, 127 So. 2d 687 (Fla. 3d DCA 1961)…and [*695] likewise without regard as to which category the funds retained would fall, or whether the funds were subject to any rights of third parties having priority over the plaintiff. The assignment is well taken. Brooker v. Smith, Fla.App.1958, 101 So. 2d 607. The orders and judgments appealed from or assigned as error are reversed and the cause is remanded for further proceedings not inconsistent herewith. Reversed and remanded. HORTON, C. J., and PEARSON, J., concur.…
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State of Fla. Dep't OF Transp. v. Plunske, 267 So. 2d 337 (Fla. 4th DCA 1972)…otice to the parties involved in an adversary proceeding and to enter an order on the motion' without first giving the parties affected notice and an opportunity to be heard before a party’s rights are taken away. See, for example, Brooker v. Smith, 101 So. 2d 607 (Fla.App. 1958). “This rule was stated by the Supreme Court of Florida in Mayflower Inv. Co. v. Brill, 137 Fla. 287, 188 So. 205 (1939), as follows: ‘It is fundamental that due process guarantees to a party notice and an opportunity to be heard be…
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Devoe & Raynolds Co., Inc. v. KDS Paint Co., Inc., 382 So. 2d 126 (Fla. 4th DCA 1980)…78). . Fla.R.Civ.P. 1.090(d) .provides: “A copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing.” . Brooker v. Smith, 101 So. 2d 607 (Fla. 2nd DCA 1958); State, Dept. of Transportation v. Plunske, 267 So. 2d 337 (Fla. 4th DCA 1972). . Hilton v. Florio, 317 So. 2d 83 (Fla. 3rd DCA 1975); Lieberman v. Marshall, 236 So. 2d 120 (Fla. 1970). . See Polland v. Visual Graphics Corp., 2…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mayflower Inv. Co. v. Brill, 137 Fla. 287 (Fla. 1939)
- Town OF Lake Hamilton v. Kernel Hughes, 160 Fla. 646 (Fla. 1948)