Farish v. Lum's, Inc.

• Decision Date: 27 September 1972
• Docket Number: No. 41544,41544
• Citation: 267 So.2d 325
• Parties: Joseph D. FARISH, Jr., Petitioner, v. LUM'S, INC., a Florida corporation, a/k/a Lum's, Respondent.
• Court: Florida Supreme Court

Page 325

267 So.2d 325

Joseph D. FARISH, Jr., Petitioner, v. LUM'S, INC., a Florida corporation, a/k/a Lum's, Respondent.

No. 41544.

Supreme Court of Florida.

Sept. 27, 1972.

Rehearing Denied Nov. 3, 1972.

Joseph D. Farish, Jr., of Farish & Farish, West Palm Beach, for petitioner.

Joe N. Unger and Smith, Mandler, Smith & Parker, Miami Beach, for respondent.

PER CURIAM.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 251 So.2d 338. The decision sought to be reviewed conflicts with Wider v. Carraway, 101 So.2d 13 (Fla.App.2d 1958), giving this Court jurisdiction under § 4, Article V of the Florida Constitution, F.S.A.

Petitioner, plaintiff below, brought suit to recover $5,000.00 paid to respondent, defendant below, pursuant to a contract between the parties. Answer was filed to the complaint and thereafter plaintiff, on May 28, 1970, served a Request for Admissions. Defendant's answers to Request for Admission mailed June 18, 1970, some twenty-one days later, was signed by defendant's attorney rather than by defendant and was not sworn to.

On receipt of defendant's unsigned, unsworn response, plaintiff moved, on September 3, 1970, for summary judgment, relying on Rule 1.370, Florida Rules of Civil Procedure, 30 F.S.A., which provides in pertinent part as follows:

'After commencement of an action a party may serve upon any other party a written request for the admission by the latter of the genuineness of any relevant documents described in and exhibited with the request or of the truth of any relevant matters of fact set forth in the request. * * * Each of the matters of which an admission is requested shall be deemed admitted unless within a period designated in the request not less than twenty days after service thereof or within such shorter or longer time as the court may allow on motion and notice, the party to whom the request is directed serves either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part together with a notice of hearing the objections at the earliest practicable time. * * *' (e.s.)

Thereafter, on September 28, 1970, prior to the hearing on summary judgment, defendant filed a motion for an order permitting filing of responses to the Request for Admissions, 'on the ground that the 'Answers to Request for Admissions' heretofore filed in this cause were inadvertently prepared not in conformance with the Rules of Civil Procedure, to-wit: they were unsworn and not signed by a party. . . .' Attached to the motion were properly executed answers to the Request for Admissions.

The trial court denied the motion and granted summary final judgment for plaintiff. On October 15, 1970, motion for rehearing, motion to vacate the judgment under Rule 1.540(b), Florida Rules of Civil Procedure, 31 F.S.A., ¹ and accompanying affidavit of defendant's attorney were filed. After consideration by the trial court these motions were denied.

On appeal the District Court reversed and remanded to permit filing of properly executed answers, holding: ²

'The trial court granted the summary judgment based on that part of Rule 1.370(a), R.C.P., which provides that 'each of the matters of which an admission is requested shall be deemed admitted unless' the party timely serves a sworn statement properly signed. The trial court judge obviously was of the opinion that these 'admissions' required him to enter the summary judgment.

'In our opinion this violates the spirit and intent of the Florida Rules of Civil Procedures.

'Lum's attempted to comply with the rules prior to the entry of the summary judgment. The invocation of the rule here operated more in the nature of a penalty upon the defendant than as an end to the orderly and expedient trial of the material issues.

'We conclude that the trial judge abused his discretion in not vacating the summary final judgment which was entered as a result of inadvertence and in failing to permit Lum's to file properly executed answers to the request for admissions. * * *'

In Wider v. Carraway, supra, the District Court of Appeal, Second District, Affirmed the trial court's grant of summary judgment based on appellant's failure to filed a signed and sworn response to Request for Admissions. In that case, as in this, the attorney, rather than the party, signed the response and it was unsworn. The responding party did not move before judgment, as did defendant in the instant case, to correct its error. However, neither was the party submitting the request for admissions in the...