Gibson v. Buice
| Decision Date | 26 March 1980 |
| Docket Number | No. 79-1056,79-1056 |
| Citation | 381 So.2d 349 |
| Parties | Robert M. GIBSON et ux., Appellant, v. Sam D. BUICE et al., Appellee. /T2-34. |
| Court | Florida District Court of Appeals |
Gene H. Auvil, of McGee & Auvil, P. A., Brooksville, for appellant.
Joseph F. Johnston, Jr., Brooksville, for appellee.
The question posed in this appeal is whether the trial court abused its discretion in denying the appellant's motion for relief, pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure. We conclude that under the circumstances in this case an abuse of discretion occurred, and that the trial court should have granted the appellant's motion.
The Buices, plaintiffs in the trial court, sought to establish a prescriptive easement over the defendants' lands. After a trial of the matter, the court announced its ruling in favor of the plaintiffs. Plaintiffs' counsel submitted a proposed judgment to the court and to defendants' counsel. The defendants' counsel wrote a letter to the court objecting to specific problems with the judgment. The court signed the final judgment on February 22, 1979, and filed it with the clerk's office on February 23, 1979. However, it failed to mail copies of the judgment to either attorney, nor did it direct anyone else to do so. The judgment contains a notation by the clerk dated February 23, 1979, that no copies were furnished to him.
Upon learning of the entry of the final judgment on March 30, 1979, the defendants' attorney filed a motion for relief from judgment pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure on the grounds that "mistake or inadvertence" had occurred due to the court's failure to mail copies of the judgment to the parties. Florida Rules of Civil Procedure 1.080(h). In support of the requested relief the defendants' counsel attached to the motion an affidavit alleging he had not received copies of the judgment, nor had he received notice that the judgment was entered from any source or person prior to March 30, 1979. Counsel for the plaintiffs filed a counter-affidavit stating that he told defendants' attorney about the entry of the judgment sometime in early March, while they were passing in the courthouse corridors, attending to other matters. The lower court denied the motion, and the defendants brought this appeal.
Rule 1.540(b) provides:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; . . .
Generally, it is the duty of the trial court to determine whether the facts in each case constitute excusable neglect. Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978). Where the excusable neglect relied upon is lack of notice of the rendition of a final judgment and ensuing failure to take a timely appeal, trial courts have discretion to grant relief pursuant to Rule 1.540(b) 1, or pursuant to Rule 1.540(a) 2.
In this case the failure to send the defendants' counsel a copy of the judgment was caused by the trial court's disregard of Rule 1.080(h)(1) which provides:
A copy of all orders or judgments shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment.
Neither plaintiff nor defendant received a copy. Therefore Rule 1.540(b) should be liberally applied here. "While our procedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice." Rogers v. First National Bank at Winter Park, 232 So.2d 377, 378 (Fla.1970).
Kash N' Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla. 2d DCA 1969) and Bennett v. Halper, 248 So.2d...
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Bennett v. Ward
...if, as a consequence, a party is precluded from taking a viable direct appeal because time for filing has elapsed. Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980); Spanish Oaks Condominium Ass'n, Inc. v. Compson of Florida, Inc., 453 So.2d 838, 840 (Fla. 4th DCA 1984) (reversing and rema......
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Jernigan v. Progressive American Ins. Co., s. 85-1648
...view of the specific finding that counsel for Progressive did not receive a copy of the judgment after its entry. See Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980). On the merits, the parties have stipulated to the factual basis for the entry of the final judgment. Jernigan was riding ......
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Hialeah Hotel, Inc. v. Woods, 3D00-418.
...Compson of Florida, Inc., 453 So.2d 838 (Fla. 4th DCA 1984); Wechsler v. Wechsler, 436 So.2d 1090 (Fla. 3d DCA 1983); Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980); Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971); Henry P. Trawick, Jr., Trawick's Florida Practice and Procedur......
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New Washington Heights Community Development Conference v. Department of Community Affairs, 86-2513
...under Florida Rule of Civil Procedure 1.540(b) to set aside order and request that new appealable order be entered); Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980) (trial court abused discretion when, after failing to send copies of final judgment to parties, it denied motion for relief......