Francisco v. Victoria Marine Shipping, Inc., No. 85-911

• Court: Court of Appeal of Florida (US)
• Writing for the Court: JORGENSON
• Citation: 11 Fla. L. Weekly 890,486 So.2d 1386
• Parties: 11 Fla. L. Weekly 890 Robert FRANCISCO and B & E Foundations, Inc., Appellants, v. VICTORIA MARINE SHIPPING, INC., Appellee.
• Docket Number: No. 85-911
• Decision Date: 15 April 1986

Page 1386

486 So.2d 1386 11 Fla. L. Weekly 890 Robert FRANCISCO and B & E Foundations, Inc., Appellants,
v.
VICTORIA MARINE SHIPPING, INC., Appellee. No. 85-911. District Court of Appeal of Florida,
Third District. April 15, 1986.

Page 1387

Joseph T. Robinson, Steven R. Berger and Diane Kuker, Miami, for appellants.

Fertig & Gramling and Frank Gramling, Fort Lauderdale, for appellee.

Before HUBBART, BASKIN and JORGENSON, JJ.

JORGENSON, Judge.

This is an appeal from an order which granted a petition for rehearing and vacated both a prior order denying relief from final judgment and the final judgment.

Francisco and B & E Foundations, Inc., [collectively B & E] filed a complaint for damages against Victoria Marine Shipping, Inc. [Victoria Marine]. Victoria Marine filed its answer and a motion to dismiss. Thereafter, B & E filed a notice to produce documents and written interrogatories. After Victoria Marine failed to produce and to answer interrogatories, B & E filed a motion to compel production of documents and answers to interrogatories. B & E's motion was granted; however, Victoria Marine failed to comply with the trial court's order. B & E then moved for imposition of sanctions. Victoria Marine failed to appear at the hearing on B & E's motion, and, as a consequence, the trial court struck Victoria Marine's pleadings and entered a default against Victoria Marine.

B & E submitted a damage affidavit in support of final judgment but failed to serve a copy of the affidavit on Victoria Marine. On July 16, 1984, the trial court entered final judgment for B & E. Thereafter, proceedings were held in aid of execution.

On or about December 10, 1984, Victoria Marine filed a motion for relief from judgment and a supporting memorandum. The motion advanced three grounds for relief: (1) that failure of B & E to serve a copy of the damage affidavit constituted a mistake within the meaning of Florida Rule of Civil Procedure 1.540(b)(1); (2) that B & E misrepresented the amount of its liquidated damages, and that such misrepresentation fell within the purview of Florida Rule of Civil Procedure 1.540(b)(3); and (3) that the judgment was void within the meaning of Florida Rule of Civil Procedure 1.540(b)(4) because Victoria Marine did not receive a copy of the damage affidavit or notice of an order setting the matter for trial on unliquidated damages and, as a result, was denied the right to contest the damages claimed by B & E. The motion was denied on February 5, 1985. On February 13, 1985, Victoria Marine moved for rehearing. After a hearing on the motion, on June 12, 1985, the trial court set aside its denial of the motion for relief from judgment as well as the final judgment and set the cause for non-jury trial. It is from this last order that B & E appeals.

B & E raises three points on appeal. We need only address the first--specifically, whether a trial court has the authority to entertain a motion for rehearing directed to an order denying a motion for relief from judgment--because resolution of this issue

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renders consideration of the other points unnecessary. I

To support its contention that the trial court did not have the authority to entertain the motion for rehearing on the order denying the motion for relief from judgment, B & E relies principally upon Potucek v. Smeja, 419 So.2d 1192 (Fla. 2d DCA 1982), and its progeny Smith v. Weede, 433 So.2d 992 (Fla. 5th DCA 1983); Atlas v. City of Pembroke Pines, 441 So.2d 652 (Fla. 4th DCA 1983), rev. denied, 450 So.2d 485 (Fla.1984); and Irwin v. Walker, 468 So.2d 241 (Fla. 2d DCA 1984). These cases are bottomed on the theory that because orders on 1.540 motions are included within the rule governing review of non-final orders (Florida Rule of Appellate Procedure 9.130), see Fla.R.App.P. 9.130(a)(5), these orders are non-final for purposes of determining whether the trial court has the jurisdiction to consider a motion for rehearing. We cannot agree with the underpinning rationale of these cases. Florida Rule of Appellate Procedure 9.130(a)(5) merely declares the method by which orders on 1.540 motions are to be appealed. ¹ This subsection does not change the nature of orders entered on 1.540 motions; nor does it specify that such orders are "non-final" as the second district court states in Potucek, 419 So.2d at 1193. The supreme court, apparently, determined that, given the limited nature of the inquiry and the process attendant to 1.540 motions, the abbreviated method of review set forth in appellate rule 9.130 is more appropriate for orders entered on 1.540 motions than the plenary method set forth in appellate rule 9.110. Nothing in the language of rule 9.130 indicates that the supreme court intended anything more. We do not think the answer to this issue lies within the rules of appellate procedure.

II

At common law a trial court had absolute control over its orders and judgments and could amend, correct, open, or vacate them at any time during the term at which they were rendered. Revell v. Dishong, 129 Fla. 9, 19, 175 So. 905, 908 (1937); Alabama Hotel Co. v. J.L. Mott Iron Works, 86 Fla. 608, 98 So. 825 (1924); 49 C.J.S. Judgments § 229 (1947). After expiration of the term, final judgments and decrees generally passed beyond the court's control. Kroier v. Kroier, 95 Fla. 865, 872, 116 So. 753, 756 (1928); Alabama Hotel Co. With the adoption of the civil rules of procedure, however, the common law "end of term" rule was abolished in Florida. Ramagli Realty Co. v. Craver, 121 So.2d 648, 653 (Fla.1960). The power of the trial court is no longer affected by the continued existence or expiration of a term of court. Fla.R.Civ.P. 1.090(c). The trial court's authority to modify, amend, or vacate an order or final judgment after rendition of the final judgment ² is limited

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to the time and manner provided by rule or statute. Shelby Mutual Insurance Co. v. Pearson, 236 So.2d 1 (Fla.1970); Kippy Corp. v. Colburn, 177 So.2d 193 (Fla.1965); Fidelity & Casualty Co. v. Palomino, 394 So.2d 448 (Fla. 3d DCA), rev. denied, 402 So.2d 609 (Fla.1981). Under the present rules, after the rendition of the final judgment, the trial court retains jurisdiction for the ten-day period during which a motion for rehearing may be filed and, if filed, until disposition of the motion. The trial court thereafter loses jurisdiction except to enforce the judgment and except as provided by Florida Rule of Civil Procedure 1.540. ³ Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983); St. Cloud Utilities v. Moore, 410 So.2d 973, 974 n. 3 (Fla. 5th DCA 1982).

The rules which provide for the correction of error are designed to strike a balance between two competing goals: "[F]irst, that justice be as exact and as free from error as human fallibility of judgment permits; and, second, that litigation be finally terminated as quickly as due process and necessary reflection allows." Kippy Corp., 177 So.2d at 196. In Kippy Corp., the supreme court stressed the importance of the second of these two goals:

These restrictions on the authority of trial courts to modify or vacate their final orders and on appellate courts to entertain appellate review constitute an implementation of the primary goal of an early final end to litigation. Without such restrictions and strict observance of them the goal of early and final end of causes would be wholly defeated.

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A litigant is not only entitled to have his cause decided; he is entitled to know that an order deciding it is final and will not be disturbed, except on appeal, or under the conditions prescribed by the rules.

Id. at 197.

The Florida Rules of Civil Procedure provide for two mechanisms by which a trial court can reconsider and correct its prior decision. The first is the...