ALVIN POLLAND AND SOPHIA POLLAND, HIS WIFE, APPELLANTS,
v.
VISUAL GRAPHICS CORP., A NEW YORK CORPORATION, AND MURRAY FRIEDEL, APPELLEES; STATMASTER CORPORATION, A NEW YORK CORPORATION, APPELLANT, V. VISUAL GRAPHICS CORP., A NEW YORK CORPORATION, AND MURRAY FRIEDEL, APPELLEES

Fla. 3d DCA | 1970-11-10
Nos. 70-59, 70-60
Before PEARSON, C. J., and BARK-DULL and SWANN, JJ.
240 So. 2d 835 Florida District Court of Appeal, Third District (1970) Positive Treatment
Cited by 12 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

Plaintiffs' complaints were dismissed after their motions to dismiss were heard in their absence due to inadequate notice of a rescheduled hearing date. The appellate court reversed, holding that proper written notice must be served on the opposing party when a hearing is rescheduled, and that publication in a designated official newspaper cannot substitute for this requirement under the Florida Rules of Civil Procedure.


Holding

The court held that Rule 1.090(d) requires a party moving for relief to ensure proper written notice is served on the opposing party a reasonable time before the hearing, even when the court reschedules the hearing. Publication in a designated official newspaper cannot satisfy this requirement, and local court rules cannot override the Florida Rules of Civil Procedure's notice requirements.


Headnotes

[1] A party seeking to have a motion heard must ensure that proper notice is given to the opposing party, even if the court changes the hearing time.

[2] A local court rule cannot override the requirements of the Florida Rules of Civil Procedure regarding notice of hearings.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“We hold that the effect of the rule is to require a party whose motion is to be heard to make sure that proper notice is given to the opposing party. This is true even though the court changes the time of the hearing.”

Establishes that the moving party bears responsibility for ensuring proper notice to the opposing party, even when the court reschedules the hearing.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

After plaintiffs filed complaints, defendants filed motions to dismiss. The scheduled hearing was postponed due to Judge Gordon's illness and reschedu…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PEARSON, Chief Judge.

*836PEARSON, Chief Judge.

These consolidated appeals are brought to review identical orders denying the plaintiff’s motions to vacate orders dismissing their complaints. The circumstances out of which the motions to vacate arose were that after the filing of the complaint in each case the defendant filed a motion to dismiss. These motions to dismiss were properly noticed for hearing before Judge Fritz Gordon, 'one of the judges of the Circuit Court of the Eleventh Judicial Circuit of Florida. Because of Judge Gordon’s illness, the motion calendar on which the motions had been placed was not heard. On the day the motion was to be heard a notice appeared in the Miami Review and Daily Record, a daily newspaper which has been designated by the Circuit Court of the Eleventh Judicial Circuit as its official newspaper, which stated “All motions previously noticed for said date will automatically be carried over to the following Thursday, October 2, 1969.” Thereafter a second notice appeared in the Miami Review announcing that on October 2, 1969, all motions would be heard by Judge William A. Herin, Acting for Judge Gordon. At the hearing on October 2, 1969, the defendants appeared and the plaintiffs did not; thereafter the motions to dismiss the complaints were granted with prejudice. Subsequently, plaintiffs filed motions to vacate the orders of dismissal and filed affidavits in support of the motions. Affidavits were also filed in opposition to the motion to vacate, and a hearing was had on the motions to vacate which were denied. These appeals followed.

The facts outlined appear from the record and are not controverted on appeal. We hold that orders denying plaintiffs’ motions to vacate the orders of dismissal must be reversed under authority of Rule 1.090(d), Florida Rules of Civil Procedure, 30 F.S.A. The rule referred to is as follows :

“(d) For Motions. 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.”

Appellee suggests that this rule has not been violated because the court took the action of setting the time for the hearing on the motion to dismiss, and the court, determined the notice that it would give. We hold that the effect of the rule is to require a party whose motion is to be heard to make sure that proper notice is given to the opposing party. This is true even though the court changes the time of the hearing. Of course the requirement for notice may be met by the court itself, either by proper announcement at the time originally scheduled or by written notice from the court.

Appellee further suggests that because the Miami Review and Daily Record has been designated as the official newspaper of the Circuit Court of the Eleventh Judicial Circuit, that notices appearing therein are sufficient to comply with the rule. We think this argument must fail, first, because a local court rule may not be made which overrules the requirements of the Florida Rules of Civil Procedure and second, there is no showing that the designation of the official newspaper was intended to or could have the effect of making notices therein a substitute for written notices required by the Florida Rules of Civil Procedure.

The order denying the motion to vacate in each cause is reversed, and the causes are remanded with directions to enter an order reinstating the cause and with directions to proceed to a further hearing upon the defendants’ motions to dismiss.

Reversed and remanded.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA 1982)
    …CA 1975) (motion to dismiss may not be entertained by court ex parte); Barr v. Ehrlich, 301 So. 2d 147 (Fla. 4th DCA 1974) (ethical considerations forbid ex parte applications to judge where dismissal is in issue); Polland v. Visual Graphics, Corp., 240 So. 2d 835 (Fla. 3d DCA 1970) (entry of order on motion to dismiss error where failure to comply with notice rule). We hold, therefore, that once a court has dismissed a complaint for failure to state a cause of action, but has granted the party leave to amen…
  • Devoe & Raynolds Co., Inc. v. KDS Paint Co., Inc., 382 So. 2d 126 (Fla. 4th DCA 1980)
    …7 (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., 240 So. 2d 835 (Fla. 3rd DCA 1970).…
  • Ingaglio v. Ennis, 443 So. 2d 459 (Fla. 4th DCA 1984)
    …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., 240 So. 2d 835 (Fla. 3rd DCA 1970).…

Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Full citator, related cases, and AI research tools

Open in FLexlaw