Crocker v. Diland Corp.

• Decision Date: 31 January 1992
• Docket Number: No. 91-1940,91-1940
• Citation: 593 So.2d 1096
• Parties: John CROCKER and Crocker Pro Golf Sales, Inc., Petitioners, v. DILAND CORPORATION and Eugene Cook, individually, Respondents. 593 So.2d 1096, 17 Fla. L. Week. D367
• Court: Florida District Court of Appeals

Page 1096

593 So.2d 1096

John CROCKER and Crocker Pro Golf Sales, Inc., Petitioners, v. DILAND CORPORATION and Eugene Cook, individually, Respondents.

No. 91-1940.

593 So.2d 1096, 17 Fla. L. Week. D367

District Court of Appeal of Florida Fifth District.

Jan. 31, 1992.

Steven L. Brannock and Karol K. Williams of Holland & Knight, Tampa, for petitioners.

Scott W. Foltz and Francis J. Carroll of Boehm, Brown, Rigdon, Seacrest, & Fischer, P.A., Daytona Beach, for respondents.

GRIFFIN, Judge.

Petitioners, John Crocker and Crocker Sales, Inc. ("Crocker"), seek certiorari relief from a circuit court order denying Crocker's motion for default in an unlawful entry action. In order to grant the writ, we must determine whether the challenged order represents a departure from the essential requirements of law which will be irremediable on appeal.

Respondents, Diland Corporation and Eugene Cook ("Diland"), filed a multi-count amended complaint against Crocker in an employment termination dispute. Diland owned and operated Village Greens Country Club and Golf Course (the "Club") and employed Crocker as the golf professional. Diland, through its president, Eugene Cook, entered into an employment contract (the "Contract") with Crocker on or about December 1, 1989. Part of Crocker's duties under the Contract included operation of the golf shop. Diland agreed to:

furnish PROFESSIONAL for his use and sole occupancy all necessary facilities, properly maintained, for the operation of his business as set forth herein, including but not limited to areas on the CLUB premises for golf shop operation, golf club services, business office, club repair, all including proper furnishings, fixtures, floor covering and utilities.

Under the Contract, Crocker was to purchase and maintain the pro shop inventory and had the exclusive right to sell golf merchandise on the Club's property.

In December, 1990 a dispute arose over Crocker's performance "under and outside" the Contract. Diland filed a complaint seeking both a declaratory judgment as to whether Crocker breached the Contract and injunctive relief. ¹ Crocker served an answer to Diland's complaint and also served an eleven count counterclaim. Count I of the counterclaim was an action for unlawful entry pursuant to Chapter 82, Florida Statutes. Crocker alleged that Diland unlawfully entered and unlawfully detained possession of the pro shop. Crocker requested a judgment awarding him possession of the property and damages against Diland. ²

Eighteen days after service of the counterclaim, Crocker served a Motion for Default and Request to Docket. The motion recites that the summary procedure in section 51.011, Florida Statutes (1989) is applicable to Chapter 82 and that Diland failed to file an answer, as required by section 51.011, within five days of service. Crocker sought entry of a default and the docketing of a jury trial under the expediting provisions of Chapter 82. On the same date, June 28, 1991, Crocker served Diland's counsel with a Notice of Hearing on the default motion scheduled for July 31, 1991.

Diland filed nothing until July 31. On that date, Diland filed a "Motion to Dismiss Amended Counterclaim" seeking to dismiss the unlawful entry count and seven other counts for failure to state a cause of action.

At the July 31 hearing, Crocker argued that because section 51.011 required an answer within five days and no other responsive pleadings were permitted, Diland's motion to dismiss was a nullity and a default should be entered. Diland, on the other hand, maintained that section 51.011 does not preclude a defendant's right to file defensive motions. According to Diland, there is no statute or case law supporting Crocker's argument that Diland's pre-answer motion to dismiss fails to toll Diland's time to answer, much less that Diland's motion to dismiss is a legal nullity. In fact, Diland asserts, "section 51.011 implicitly confirms Diland's right to file a motion to dismiss at any time prior to trial by specifically instructing the court to hear all defensive motions prior to trial." See Sec. 51.011(1), Fla.Stat. (1989). Diland argues that, notwithstanding section 51.011, Rule 1.140 of the Florida Rules of Civil Procedure provides for the filing of a motion to dismiss and the tolling of the deadline to file an answer when such a motion is filed. Diland contends section 51.011 cannot override the rules of procedure because procedure is within the exclusive power of the supreme court.

The lower court denied the motion for default, commenting that section 51.011 predated the 1968 Florida Constitution, that the Florida Rules of Civil Procedure do provide that a motion to dismiss will toll the time for an answer, and that, in his experience, county judges usually permit motion practice in cases to which section 51.011 applies.

The summary procedure described in section 51.011 is provided as a remedy for unlawful and forcible entry pursuant to section 82.03, Florida Statutes (1989). The summary procedure statute, section 51.011, Florida Statutes (1989), states in relevant part:

51.011 Summary procedure.--The procedure in this section applies only to those actions specified by statute or rule. Rules of procedure apply to this section except when this section or the statute or rule prescribing this section provides a different procedure. If there is a difference between the time period prescribed in a rule and in this section, this section governs.

(1) PLEADINGS.--Plaintiff's initial pleading shall contain the matters required by the statute or rule prescribing this section or, if none is so required, shall state a cause of action. All defenses of law or fact shall be contained in defendant's answer which shall be filed within 5 days after service of process. If the answer incorporates a counterclaim, plaintiff shall include all defenses of law or fact in his answer to the counterclaim and shall serve it within 5 days after service of the counterclaim. No other pleadings are permitted. All defensive motions, including motions to quash, shall be heard by the court prior to trial.

Crocker rejects Diland's argument that rule 1.140 has constitutional primacy over section 51.011 because of Florida Rule of Civil Procedure 1.010, which states in relevant part:

The form, content, procedure and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary.

In Gonzalez v. Badcock's Home Furnishings Center, 343 So.2d 7, 8 (Fla.1977), the supreme court considered whether the statutory special procedure for replevin, which contained procedures radically different from the procedures in Florida Rules of Civil Procedure 1.140 and 1.500, was an unconstitutional incursion by the legislature into rulemaking. In concluding it was not, the supreme court explained that under rule 1.010 a special statutory procedure controls unless a specific court-enacted rule provides otherwise. 343 So.2d at 8. See also Lane v. Brith, 313 So.2d 91 (Fla. 4th DCA 1975), cert. denied, 328 So.2d 842 (Fla.1976). In effect, the supreme court has indicated that if there is some aspect of a special statutory procedure it disapproves, it will say so by rule. Unless it does, the special statutory procedures apply.

The parties have brought to our attention several county court cases involving landlord/tenant actions in which the courts have held that section 51.011 does allow motion practice. In Aetna Life Ins. Co. v. County Casuals, Inc., 5 Fla.Supp.2d 107 (Fla. Orange Cty.Ct.1983), the tenant moved to dismiss the landlord's complaint because the landlord failed to file a required annual corporate report. The landlord filed the report before the hearing and the court denied the motion to dismiss. The landlord then moved for a default because the tenant failed to file an answer within five days as required by section 51.011. The court noted that "[t]he question of whether a tenant must file his answer at the same time he files his motion is constantly raised but this Court has found no case which has decided the issue." Id. at 107. The county court reasoned:

In landlord-eviction cases a motion tolls the time necessary to file an answer since F.S. 51.011 is silent on this point.

Although Florida Statute 51.011(a) permits motion practice, it fails to explain when the motion is to be filed and whether the motion tolls the time necessary to file the answer. Therefore, the Florida Rules of Civil Procedure apply. 1.010 Fla.R. of Civ.P. Pursuant to 1.140(a) Fla.R.Civ.P., a motion tolls the time necessary to file an answer.

It is important to recognize that the term "answer" is a defense [sic] pleading, Rule 1.110(a), Florida Rules of Civil Procedure, whereas the term "motion" is not a pleading. White v. Fletcher, 90 So.2d 129 (Fla.1956); Raulerson v. Hamm, 394 So.2d 1144 (Fla. 4th DCA, 1981). Thus when the legislature requires that "all defenses of law or fact shall be contained in defendant's answer", they are referring to responsive pleadings, not motion practice.

Id. at 108. See also Mihaley v. White, 15 Fla.Supp.2d 57 (Fla. Sarasota Cty.Ct.1986); Assured Realty, Inc. v. Brown, 48 Fla.Supp. 180 (Fla. Orange Cty.Ct.1978). The County Casuals court concluded that section 51.011 does not conflict with rule 1.140 and does not preclude the motion practice described in rule 1.140. The court reinforced its analysis with a discussion of the practical considerations supporting its conclusion, mainly the unfairness of requiring a defendant to file an answer where the complaint is defective or a jurisdictional defect exists.

Our supreme court has emphasized a summary procedure in actions for unlawful entry and detainer is needed:

to provide a summary legal remedy for restoring possession to prevent criminal disorder and breaches of the peace, which would likely ensue if no summary legal remedy existed, and ...