Barr v. Ehrlich, 74--82

• Decision Date: 11 October 1974
• Docket Number: No. 74--82,74--82
• Parties: William M. BARR and Rebecca Barr, Appellants, v. Rae EHRLICH, Appellee.
• Court: Florida District Court of Appeals

Page 147

301 So.2d 147

William M. BARR and Rebecca Barr, Appellants, v. Rae EHRLICH, Appellee.

No. 74--82.

District Court of Appeal of Florida, Fourth District.

Oct. 11, 1974.

Dwight W. Severs of Crofton, Holland, Starling, Harris & Severs, Titusville, for appellants.

Joseph R. Moss of Ferrell & Moss, Cocoa, and A. T. Rossetter, Melbourne, for appellee.

WALDEN, Judge.

We earlier remanded this cause to the Circuit Court with directions that a hearing be conducted as contemplated by Rule 1.420(e), F.R.C.P., according to the notice which had scheduled same for June 12, 1973. For history and details see Barr v. Ehrlich, 295 So.2d 697 (4th D.C.A.Fla.1974).

The Circuit Court graciously and conscientiously complied. A hearing was conducted. A comprehensive report was entered to which we shall refer. We now have the whole record before us.

We determine that the judgment must be affirmed. The Appellate points lack merit and only Point I warrants opinion discussion, such Point I being:

The trial court erred in setting a non-jury trial and conducting a trial when there was an undisposed of notice of hearing dated May 11, 1973, and a timely demand for trial by jury.

Manifestly and as reflected in the mentioned Circuit Court report, the cause was subject to dismissal at 5:00 p.m. on June 12, 1973. This is true because there was a failure to prosecute according to the procedure and criteria provided in Rule 1.420(e), F.R.C.P. However, there is more. The record supports the overriding dispositive findings and observations of the Circuit Court contained in the mentioned report:

'Upon the evidence adduced herein this court finds as a matter of fact that when Mr. Rossetter, counsel for the plaintiff, received the notice of hearing in question, he telephoned Mr. Trader, counsel for the defendants, learned that Mr. Trader would not object to the hearing being cancelled, and that Mr. Rossetter then called Judge Williams' office and was able to obtain assurance that an order of dismissal would not be entered and the undersigned further finds that no party or counsel appeared at the appointed time, no hearing was had and no order thereon was made or entered. This case was re-assigned from Judge Williams to the undersigned, who, as trial judge, has a definite memory of asking, in chambers before trial, defense counsel if there was any problem as to this matter and such counsel assuring the court that he was ready and willing to proceed to trial. From arguments in chambers during trial, the undersigned came to believe that Mr. Trader had been willing to try the case on its merits because of his firm opinion that the contract in question, not having two witnesses, was not enforceable under Radabaugh v. Ware, Fla.App.1970, 241 So.2d 738. If this trial judge can properly consider all the facts and circumstances, then its decision would be that the trial court abandoned its motion and hearing under this rule but that, in any event, the defendants are bound by their counsel's representation to opposing counsel and to the court and are estopped to now contend contrary to past assurances and, having agreed to present the matter on its merits to the court and receiving an adverse conclusion, cannot now go back and have that which they waived, and the motion should for those reasons be denied.'

The record shows that the cause was duly presented and tried upon the merits to partial final judgment without appropriate objection or preservation of error on the part of defendant's counsel. We affirm as concerns this point upon authority of Fields v. Fields, 291 So.2d 663 (1st D.C.A.Fla.1974).

The mentioned report sets forth in considerable detail the local practice and custom whereby Rule 1.420(e), F.R.C.P., is administered in that circuit. This was done as a foundation and probable explanation for the events that transpired in the trial court and lead to this appeal. Although our comments thereon are perhaps dicta, we offer them for whatever they may be worth lest our silence be deemed an approval. We, of course, are interested in such matters only when they are entwined with and critical to a matter presented to us in our appellate function. We have neither the authority nor the wish to intrude into the internal affairs of the trial court or to promulgate local rules or customs.

We applaud and agree with the observation, 'Actual practice, long custom, courtesy, respect, ethics, travel and other expense convenience, and mutual confidence do play a part in the manner in which trial courts have traditionally construed and administered, on their own motion, RCP...