INGER ROGERS, PETITIONER,
v.
FIRST NATIONAL BANK AT WINTER PARK, A NATIONAL BANKING ASSOCIATION, FRANK P. GLACKIN, JR., JAMES S. FORTINER AND JOHN BARTZ, RESPONDENTS
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The Florida Supreme Court reversed a district court's dismissal of a plaintiff's fraud complaint where the attorney's firm failed to receive notice of the defendant's motion to vacate and the resulting dismissal order, holding that Rule 1.540(b) relief from judgment should be liberally applied when procedural rules for notice have not been complied with.
The court held that the trial court abused its discretion and that Rule 1.540(b) relief should be granted. When procedural rules for notice have not been complied with and all circumstances are considered, a liberal application of Rule 1.540(b) is warranted to serve the ends of justice.
[1] Relief from a judgment or order may be granted under Rule 1.540(b) for mistake, inadvertence, excusable neglect, or similar reasons.
[2] A trial court may abuse its discretion by failing to grant relief from a judgment when notice of the motion to vacate and the dismissal order were not properly served on…
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Join FLexlaw to unlock all legal intelligence“While our procedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice.”
Establishes the principle that procedural rules must be applied flexibly to serve substantive justice, not rigidly at the expense of justice.
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Join FLexlaw to unlock all legal intelligencePetitioner Rogers was represented by the law firm Hornsby & Salfi in a fraud action. The initial complaint was defective and the plaintiff's attorney …
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This case involves an application of Rule 1.540(b). F.R.C.P., 31 F.S.A., which relates to relief from judgments, decrees or orders in situations affected by mistake, inadvertence, excusable neglect and the like. We have jurisdiction due to conflict between the decision in this case and decisions rendered by two other Distirct Courts in the cases of Nenow v. Ceilings and Specialities, Inc., 151 So.2d 28 (2nd D.C.A.Fla.1963), and Sapienza v. Karland, Inc., 154 So.2d 204 (3rd D.C.A.Fla.1963).
The procedural events occurring below, which are the subject matter of this dispute, are described in the opinion of the District Court, Fourth District, reported at 223 So.2d 365. We present here only an overview of the underlying factual situation as we understand it.
Petitioner-plaintiff was represented by the firm of Hornsby & Salfi in suit for fraud against respondents-defendants. Sal-fi handled the case. The initial complaint filed by Salfi was defective and he was given 20 days to amend; subsequently by stipulation this was extended another week. While this amendment period was running, the Hornsby & Salfi firm dissolved and Salfi’s cases were given to Moran who was associated with Hornsby. About 40 days after the expiration of the amendment period, Moran asked respondent’s attorneys for the status of the time stipulation. He *378was informed that respondent’s attorneys had filed a motion to vacate the complaint and that the trial judge had granted the motion by order dismissing the complaint with prejudice. This came as a surprise since the Hornsby firm apparently had never received copies of the respondent’s motion to vacate or the dismissal order.
Hornsby then filed motion to vacate the dismissal order and also an amended complaint. Trial court refused to grant the motion because Moran was attorney of record and no affidavit was submitted by him as to why the complaint was not amended in time. Subsequently the firm filed another motion to vacate along with an affidavit by Moran saying that he had been in poor health and had had secretarial problems due to the new working arrangement in the firm. The trial court dismissed the new motion and affidavit. Upon appeal, 4th D.C.A. affirmed 2-1, at 223 So.2d 365. The D.C.A. majority held that the trial court had not abused its discretion; the dissent held it had in light of the fact that copies of the respondent’s motion to vacate or the dismissal order were never delivered to the Hornsby firm.
We agree with the dissenting judge. When viewed in its totality, the series of events that transpired below call for a liberal application of Rule 1.540(b), especially since it appears that the rules for notice were not complied with. While our procedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice.
The order affirmed by the District Court of Appeal, Fourth District, is reversed and this cause is remanded to that Court for further disposition not inconsistent with this opinion.
It is so ordered.
ERVIN, C. J., and ROBERTS, DREW and ADKINS, JJ., concur.
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Citator
Cited By (21 total)
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Bryant v. State, 901 So. 2d 810 (Fla. 2005)…m ten to thirty days to amend a complaint that does not state a cause of action. See Kozel v. Ostendorf, 629 So. 2d 817 (Fla.1993) (noting that the plaintiff was granted twenty days to amend the complaint); Rogers v. First Nat’l Bank at Winter Park, 232 So. 2d 377, 377 (Fla.1970) (noting that the trial court granted plaintiff twenty days to amend the complaint); Rohlwing v. Myakka River Real Props., Inc., 884 So. 2d 402, 405 (Fla. 2d DCA 2004) (citing Kozel); Town of Manalapan v. Fla. Power & Light Co., 815 S…
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Crystal Lake Golf Course, Inc. v. Kalin, 252 So. 2d 379 (Fla. 4th DCA 1971)…on in denying defendant’s motion to vacate which order of denial is a final appealable order. Odum v. Morningstar, Fla.App.1963, 158 So. 2d 776; Rogers v. First National Bank at Winter Park, Fla.App.1969, 223 So. 2d 365, rev’d on other grounds Fla., 232 So. 2d 377. Upon a careful review of the record we are of the opinion that defendant’s motion to vacate sets forth sufficient facts to justify the granting of relief in accordance with the spirit and intent of Rule 1.540(b), F.R.C.P., 31 F.S.A. The record re…
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Robert M. Gibson et ux. v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980)…e liberally applied here. “While our procedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice.” Rogers v. First National Bank at Winter Park, 232 So. 2d 377, 378 (Fla.1970). Kash N’ Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So. 2d 786 (Fla. 2d DCA 1969) and Bennett v. Halper, 248 So. 2d 522 (Fla. 3d DCA 1971) are distinguishable from this case because the secretary of the judge in Bennett and t…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sapienza v. Karland, Inc., 154 So. 2d 204 (Fla. 3d DCA 1963)
- Adolph W. Nenow, Jr. v. Ceilings & Specialties, Inc., 151 So. 2d 28 (Fla. 2d DCA 1963)
- Inger Rogers v. First Nat'l Bank AT Winter Park, 223 So. 2d 365 (Fla. 4th DCA 1969)