Abrams v. Paul

• Decision Date: 12 June 1984
• Docket Number: No. AO-188,AO-188
• Citation: 453 So.2d 826
• Parties: Gene ABRAMS, Dixie Sea Products, Inc., a Florida corporation and Robert M. Moore, Appellants, v. Sally PAUL and Allen William Paul, d/b/a Paul's Seafood, Appellees.
• Court: Florida District Court of Appeals

Page 826

453 So.2d 826

Gene ABRAMS, Dixie Sea Products, Inc., a Florida corporation and Robert M. Moore, Appellants, v. Sally PAUL and Allen William Paul, d/b/a Paul's Seafood, Appellees.

No. AO-188.

District Court of Appeal of Florida,

First District.

June 12, 1984.

Van P. Russell, of Watkins & Russell, Apalachicola, for appellants.

Robert Cintron, Jr., of Dearing & Smith, Tallahassee, for appellees.

PER CURIAM.

Appellants were the defendants in a suit arising out of the sale of a stolen truck to the appellees. The amended complaint contained counts against Abrams and Dixie Sea Products Inc. for breach of warranties, a count against "defendants" alleging fraud, and a count against Moore (an attorney) for malpractice. Although the defendants answered the original complaint, they did not respond to the amended complaint and a default was entered some five months after the amended complaint was filed. Thereafter, a jury trial was held on the issue of damages which resulted in a verdict against the defendants, jointly and severally, in the amount of $22,000 actual damages and $22,000 punitive damages. By this appeal, the defendants challenge the entry of default and the jury verdict. We affirm on all points except the one discussed more fully below pertaining to the trial court's rejection of appellants' contention that they never received the notice of trial. On that issue we reverse and remand for reconsideration by the trial court.

Appellants first assert that the court erred in entering the default against defendant Moore because, they allege, the complaint fails to state a cause of action against him. We have thoroughly reviewed the record on appeal and find no indication that this assertion was ever presented to the trial court. Appellants' motion to vacate the default judgment does not even vaguely refer to the possibility that the default against Moore was improper because the allegations in the complaint were insufficient to state a cause of action against him. Whether the allegations of a complaint which are deemed admitted due to the entry of a default state a cause of action is, as with any other disputed legal issue, preliminarily for the trial court to consider. See North American Accident Ins. Co. v. Moreland, 60 Fla. 153, 53 So. 635 (1910). Since this issue is raised for the first time on appeal, the trial court has not been afforded an opportunity to determine the merits of appellants' assertion. If the issue had been presented to the trial court in the motion to vacate the default, its ruling thereon would, of course, be subject to review by this court. See e.g., GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d DCA 1975); Bay Products Corp. v. Winters, 341 So.2d 240 (Fla. 3d DCA 1976). However, in the absence of jurisdictional or fundamental error, it is axiomatic that it is the function of the appellate court to review errors allegedly committed by trial courts, not to entertain for the first time on appeal issues which the complaining party could have, and should have, but did not, present to the trial court. Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973); 3 Fla.Jur.2d Appellate Review § 92. Appellants do not contend that the alleged deficiencies in the complaint constitute fundamental or jurisdictional error, nor have we found any authority which would support such a contention. We therefore decline to consider the question of whether the complaint sufficiently stated a cause of action against defendant Moore.

Second, appellants argue that the default was improper because they had answered the original complaint. However, the amended complaint was filed after the effective date of the amendment to Fla.R.Civ.P. 1.190(a), which provides that "a party shall plead in response to an amended pleading ...." Therefore, the answer to the original complaint did not carry over so as to be considered a response to the amended complaint.

Next, appellants argue that they were entitled to a new trial because (1) they did not receive the notice of trial; (2) the notice of trial was mailed only 27 days before the trial was set; and (3) the trial court did not enter an order setting the case for trial. Fla.R.Civ.P. 1.440. Rule 1.440 provides in pertinent part:

(b) Notice for Trial. Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. The notice shall include an estimate of the time required, whether the trial is to be by a jury or not and whether the trial is on the original action or a subsequent proceeding. The clerk shall then submit the notice and the case file to the court.

(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than thirty days from the service of the notice specified in subdivision (b) .... ¹

In their motion for a new trial, appellants alleged that they never received the notice of trial. The motion was accompanied by affidavits executed by Moore and his secretary to that effect. While the trial court found specifically that Moore's affidavits "were not sufficient to overcome" the "prima facie proof of service and receipt" arising from the certificate of service in the plaintiff's notice of jury trial, the language in the order indicates that the judge may have misapprehended his authority and duty to make a factual determination that defendants did or did not receive the notice of trial. The order states in pertinent part:

The certificate of service set forth in plaintiff's notice of jury trial is prima facie proof that the notice was mailed to and received by counsel for defendants. Defendant Moore's sworn affidavits that his office had not received the notice of jury trial were not sufficient to overcome such prima facie proof of service and receipt.

The presumption raised by the certificate of service is clearly not conclusive. Neither is a sworn denial of receipt either sufficient or insufficient as a matter of law in rebuttal of the presumption. Both Scott v. Johnson, 386 So.2d 67 (Fla. 3d DCA 1980), and Winky's, Inc. v. Francis, 229 So.2d 903 (Fla. 3d DCA 1970), support the proposition that whether the defendants received the notice of trial is a question of fact for the trier of fact. Both cases explicitly recognize that the certificate raises only a rebuttable presumption. Scott actually reversed the trial court and remanded for an evidentiary hearing on whether "the presumption of receipt created by such mailing has not been overcome by sufficient and competent evidence." 386 So.2d at 69. The Scott decision does contain, however, certain unfortunately worded dictum that "this presumption is not overcome by a denial, even though sworn, that the order was not received," citing in support of that statement Service Fire Insurance Co. of New York v. Markey, 83 So.2d 855 (Fla.1955); Milros-San Souci, Inc. v. Dade County, 296 So.2d 545 (Fla. 3d DCA 1974); and Allstate Insurance Co. v. Dougherty, 197 So.2d 563 (Fla. 3d DCA 1967). Two of the cited decisions involved mailing notices of insurance cancellation which, under the terms of the respective policies, were deemed complete when mailed, irrespective of actual receipt by the insured. The other case, Milros-Sans Souci, involved the mailing of a tax assessment that was held to create a presumption of receipt which was not overcome by the appellants at an evidentiary hearing at which witnesses for the respective parties testified. The dictum in Scott should not, in light of the cited authorities, be taken to mean that a sworn denial of receipt is insufficient as a matter of law to overcome the rebuttable presumption. Winky's, Inc., involved personal service of process by a deputy sheriff on the resident agent of the defendant, who denied actual receipt. After a full evidentiary hearing on this question, the trial court found that "[b]y virtue of the fact that the Deputy Sheriff says he went to the place of business, was told who Mr. Krieger was, and served that individual, on the face of it, proper service was had." 229 So.2d at 905. The trial court's holding that defendant's testimony denying receipt did not overcome the deputy's evidence of actual service was affirmed on appeal. Accordingly, neither Scott nor Winky's compels disregard of the affidavits of denial filed by defendant Moore and his secretary in the instant case.

The issue is therefore a factual one requiring the trial court to weigh the evidence and make a determination as to whether the notice was received. In addition to the attached affidavits, the motion herein stated affiant's preparedness to testify as to office records and lack of receipt. Since the record reflects no evidentiary hearing on the issue, and the quoted language from the order, supra, indicates that the trial court's determination was based upon the incorrect premise that the presumption of receipt established by the certificate of service could not, as a matter of law, be overcome by the defendant's sworn statements, we reverse the order of denial and remand the cause to the trial court for determination of the essential fact.

A difficult question is also presented by the allegations of reversible error based on the court's failure to enter an order setting the trial, for a time more than thirty days from the service of the notice. The rule expressly requires the trial court to enter an order setting the case for trial, and does not provide an exception for local practice to permit reliance on the notice and dispense with the order. However, in Padgett v. First Federal Savings and Loan, 378 So.2d 58 (Fla. 1st DCA 1979), this court took judicial notice that it is in fact the custom and practice in many jurisdictions to dispense with the order. Although the opinion criticized the practice, it stated that "we must accord a fairly wide latitude to the local courts in the handling of these matters." Because the defendants had...