WILLIAM J. MOSS, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., A FOREIGN CORPORATION, ET AL., APPELLEES
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William Moss appeals the dismissal of his personal injury action with prejudice after he failed to appear at trial, claiming he did not receive adequate notice that counsel was withdrawing and that he needed to appear. The Fourth District reversed the dismissal, finding that Moss reasonably relied on his attorney to prosecute the case and was not given notice of the withdrawal hearing.
The trial court abused its discretion by dismissing the case with prejudice. The record clearly shows that Moss believed he had counsel handling his case and lacked notice of either the withdrawal hearing or the specific obligation to appear at trial himself. The case must be reversed and reinstated for further proceedings.
[1] A trial court abuses its discretion when it denies a motion to set aside a dismissal with prejudice without an adequate record to support the ruling.
[2] A party's belief that their case is being prosecuted by their attorney, without notice of the attorney's withdrawal or the trial date, may warrant setting aside a dismiss…
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Join FLexlaw to unlock all legal intelligence“the trial judge exercises discretion in ruling on 1.540(b) RCP motions, but his exercise of discretion must rest upon facts ascertainable from the record”
Establishes the standard of review: discretionary decisions must be supported by factual findings in the record.
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Join FLexlaw to unlock all legal intelligenceMoss's personal injury case was set for trial on September 9, 1974. On August 27, his counsel filed a motion to withdraw and mailed Moss notice by cer…
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[*496] DOWNEY, Judge.
Appellant’s personal injury action was set for trial September 9, 1974. On August 27, 1974, appellant’s counsel filed a motion to withdraw, and he sent appellant a copy of said motion, together with a notice of hearing, by certified mail, return receipt requested. The return receipt bears the following signature: “Willie Moss Modena Pope” and shows the date of delivery as “8-30-74”.
On August 28, 1974, appellant’s counsel sent appellant a notice by certified mail, return receipt requested, advising him that “the court continues with your case and it is presently set for trial 9-9-74. Please contact me immediately.” This return receipt also bears the signature: “Willie Moss Modena Pope”, but it shows no date of delivery.
Appellant did not attend the hearing on the motion to withdraw. The court signed an order granting the motion on September 5, 1974, and the order was filed September 6, 1974. No copy of the order was sent to appellant. On September 9, 1974, the case was called for trial and when neither appellant nor anyone on his behalf appeared, the trial court dismissed the case with prejudice.
On September 17, 1974, appellant, through new counsel, filed a motion under Rules 1.530 and 1.540, RCP, to set aside the order of dismissal, alleging “that he did not have notice that he was to appear in his own behalf to prosecute his action and, in fact, had full confidence that his cause of action was being prosecuted by the attorney who represented him in filing his claim.” Attached to the motion was an affidavit in which appellant states that he received the correspondence from his lawyer notifying him of the trial date and of counsel’s withdrawal at 1:00 p. m., on September 9, 1974, the day the case was called for trial. This appeal followed a denial of said motions.
Of course the trial judge exercises discretion in ruling on 1.540(b) RCP motions, but his exercise of discretion must rest upon facts ascertainable from the record. Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., Fla.App.1972, 261 So. 2d 540. The record here shows without contradiction that appellant thought he had a lawyer handling his case and that he had no notice of the hearing on motion of counsel to withdraw or that he should be at the trial at a certain time.
We do not believe Scott v. Seabreeze Pools, Inc., Fla.App.1974, 300 So. 2d 279, is authority for the action of the trial court in this case. There Mr. Scott knew the trial date; he had discussed the case fully with counsel in anticipation of the trial; he was very familiar with litigation and he knew his counsel was withdrawing shortly before trial. We affirmed the trial court’s order of dismissal with prejudice in that case because there was an adequate record to support the trial court’s exercise of discretion. The record in the present case is inadequate.
Accordingly, we reverse the order denying appellant’s motion to vacate the final order of dismissal with prejudice, with directions to reinstate the case for further proceedings.
REVERSED with directions.
MAGER, J., concurs.
OWEN, J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
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Taylor v. Bowles, 570 So. 2d 1093 (Fla. 4th DCA 1990)…er received notice of the pending trial. “Of course the trial judge exercises discretion in ruling on 1.540(b) RCP motions, but his exercise of discretion must rest upon facts ascertainable from the record.” Moss v. State Farm Mut. Auto. Ins. Co., 328 So. 2d 495, 496 (Fla. 4th DCA 1976). Without regard to whether a party believed that he had an attorney handling his case, when the record shows that a party had no notice of the hearing on a motion for withdrawal of counsel or knowledge that he should be at t…
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Kuhlman v. Travelers Indem. Co., 344 So. 2d 941 (Fla. 3d DCA 1977)…nstate the cause. See Beasley v. Girten, 61 So. 2d 179 (Fla.1952); Goldman v. Tabor, 239 So. 2d 529 (Fla.2d DCA 1970); Crystal Lake Golf Course, Inc. v. Kalin, 252 So. 2d 379 (Fla.4th DCA 1971); and cf. Moss v. State Farm Mutual Automobile Ins. Co., 328 So. 2d 495 (Fla.4th DCA 1976). Accordingly, we reverse the order denying plaintiff’s Motion to Vacate and Set Aside the Dismissal, and remand the cause with directions to vacate the order of dismissal and to place the cause on the next available trial calenda…
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In re Forfeiture OF: 1977 Chevrolet Corvette v. Williams, 619 So. 2d 476 (Fla. 2d DCA 1993)…notice of court proceedings establishes good cause to permit a case to remain pending. Barnett Bank of South Florida, N.A, v. Picchi, 503 So. 2d 1373 (Fla. 4th DCA 1987), approved, 521 So. 2d 1090 (Fla.1988); Moss v. State Farm Mut. Auto. Ins. Co., 328 So. 2d 495 (Fla. 4th DCA 1976). Under the particular facts of this case, we find that the City is not required to comply with the good cause in writing requirement. In Ravel v. Ravel, 326 So. 2d 223 (Fla. 2d DCA 1976), this court concluded that Florida Rule o…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Collie v. State, 261 So. 2d 540 (Fla. 3d DCA 1972)
- Imperial Indus., Inc. v. Moore Pipe & Sprinkler Co., 261 So. 2d 540 (Fla. 3d DCA 1972)
- Scott v. Seabreeze Pools, Inc., 300 So. 2d 279 (Fla. 4th DCA 1974)