Crystal Lake Golf Course, Inc. v. Kalin, 70--1098

• Citation: 252 So.2d 379
• Decision Date: 17 September 1971
• Docket Number: No. 70--1098,70--1098
• Parties: CRYSTAL LAKE GOLF COURSE, INC., Appellant, v. Melvin H. KALIN and Helen G. Kalin, Appellees.
• Court: Court of Appeal of Florida (US)

Page 379

252 So.2d 379

CRYSTAL LAKE GOLF COURSE, INC., Appellant, v. Melvin H. KALIN and Helen G. Kalin, Appellees.

No. 70--1098.

District Court of Appeal of Florida, Fourth District.

Sept. 17, 1971.

T. Minton Baughman, Pompano Beach, and A. M. Schwitalla, Miami, for appellant.

John R. Young, of Hamilton, James, Merkle & Young, West Palm Beach, and Musselman & Rhinehardt, Pompano Beach, for appellees.

MAGER, Judge.

The plaintiffs, claiming to be owners of certain described property which apparently was leased to defendant, sought to recover possession of the premises and filed a petition on November 19, 1970, for removal of the defendant. The petition alleged that the defendant was in arrears in the payment of rent as required by the lease agreement. Defendant filed its answer pursuant to the summons of the court on November 27, 1970. The court's order of December 7, 1970, found for the plaintiff and ordered delivery of the possession of the property to the plaintiff with execution thereon.

The court's order of December 7 is not before us for review, no timely appeal having been taken therefrom. The sole issue before this court is whether the trial court abused its discretion in denying defendant's motion to vacate which order of denial is a final appealable order. Odum v. Morningstar, Fla.App.1963, 158 So.2d 776; Rogers v. First National Bank at Winter Park, Fla.App.1969, 223 So.2d 365, rev'd on other grounds Fla., 232 So.2d 377.

Upon a careful review of the record we are of the opinion that defendant's motion to vacate sets forth sufficient facts to justify the granting of relief in accordance with the spirit and intent of Rule 1.540(b), F.R.C.P., 31 F.S.A.

The record reflects that the cause below was conducted under the summary procedure provisions, as set forth in Sections 83.21 and 51.011, Florida Statutes, F.S.A. The record further reflects that subsequent to the filing of the plaintiffs' petition and the defendant's answer the trial court, on December 2, issued an order for a pretrial conference to be held on December 7, 1970 'for the purpose of a conference on the facts and issues involved.' The defendant failed to attend the pretrial conference. The trial court apparently proceeded on an ex parte basis and entered its order of December 7 in favor of plaintiff. On December 8, 1970, the defendant filed a 'motion to vacate default', asserting that through error, inadvertence and excusable neglect on the part of the counsel for the defendant the date of the pretrial conference was not properly noted by defense counsel's secretary in his diary book. Defendant's counsel candidly admitted that it was his responsibility to be informed but by reason of the foregoing he had to knowledge of the pretrial conference date until late in the afternoon of December 7. It appears that on the morning of December 8, 1970, defendant filed the aforementioned motion to vacate default. On December 23, 1970, the trial court denied defendant's motion to vacate.

Since the order of December 7 contains no finding that such order was entered as a result of defendant's failure to appear, nor does the record indicate compliance with Rule 1.500(b) pertaining to defaults and final judgments thereon, it must be assumed that the lower court's order was entered pursuant to Rule 1.200, F.R.C.P., 30 F.S.A., the pertinent part of which provides:

'* * * Upon failure of an attorney for a party to attend the (pretrial) conference, the court may dismiss the suit or strike the answer or take such action as justice requires.'

In Beasley v. Girten, Fla.1952, 61 So.2d 179, the Supreme Court of Florida, speaking through the late Mr. Justice Glenn Terrell, observed that the pretrial conference rule was designed to be a great time saver and one of the best means yet devised to expedite the disposition of litigation; counsel are expected to conform with this rule as they would any other rule or be called to account for failure to do so. In reversing the trial court's order dismissing the cause with prejudice for failure to attend a pretrial conference, Justice Terrell observed:

'The court unquestionably has power to discipline counsel for refusal or failure to meet the requirements of the rule. Such refusal may warrant a citation for contempt or a lesser degree of punishment, but it is our view that the major punishment for such delicts should ordinarily be imposed on counsel rather than on the litigant. Dismissal 'with prejudice' in effect disposes of the case, not for any dereliction on the part of the litigant, but on the part of his counsel. We are not unmindful of the rule that counsel is the litigant's agent and that his acts are the acts of the principal, but since the rule is primarily for the governance of counsel, dismissal 'with prejudice would in effect punish the litigant instead of his counsel. Although persistent refusal to attend might, in the interest of justice, require a dismissal without prejudice, we think for the reasons given that such dismissal upon the first infraction is too severe.' (Emphasis added.)

See also Goldman v. Tabor, Fla.App.1970, 239 So.2d...