Hamilton v. Bogorad, Klein, Schulwolf, Masciovecchio, Inc., 73--2

• Decision Date: 27 March 1973
• Docket Number: No. 73--2,73--2
• Citation: 275 So.2d 41
• Parties: J. J. HAMILTON, Appellant, v. BOGORAD, KLEIN, SCHULWOLF, MASCIOVECCHIO, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 41

275 So.2d 41

J. J. HAMILTON, Appellant, v. BOGORAD, KLEIN, SCHULWOLF, MASCIOVECCHIO, INC., a Florida corporation, Appellee.

No. 73--2.

District Court of Appeal of Florida, Third District.

March 27, 1973.

Bolles, Goodwin, Ryskamp & Ware, Miami, for appellant.

Aronovitz, Silver & Booth and Jeffrey M. Fenster, Miami, for appellee.

Before CHARLES CARROLL and HENDRY, JJ., and MELVIN, WOODROW M., Associate Judge.

CARROLL, Judge.

This appeal is from an order denying a motion of defendants to set aside a default judgment. We find error and reverse.

The appellees filed a complaint against Want-Ad-Central Corporation of Florida, D. H. Flowers and J. J. Hamilton, seeking to recover for certain advertising services rendered. In one count it was alleged the defendant corporation was indebted to plaintiffs for $3,924.81 for services for which the corporation had contracted and which had been performed by plaintiffs. In a second count it was alleged the individual defendants were directors of the corporation and were its alter ego, had ordered and accepted said services, and were obligated to pay therefor. An answer was filed by the individual defendants Flowers and Hamilton, admitting the plaintiffs had performed certain services for the defendant corporation, demand for payment therefor and non-payment, and admitting that the individual defendants had formed the corporation and were directors thereof, but benying the other allegations.

The answer of the defendants was filed through Hamilton as attorney. Hamilton, at that time, was a lawyer admitted to the practice of law in the states of New York and Florida. Rule 1.030(a) FRCP, 30 F.S.A., requires a lawyer who files a pleading to sign the same and state his address. In signing the answer as attorney the address given by Hamilton was 25 West Flagler Street in Miami.

The plaintiff filed a motion for judgment on the pleadings. A copy of the motion was mailed to Hamilton at 25 West Flagler Street, Miami. It was returned to the sender with the notation 'addressee unknown.'

Thereupon counsel for plaintiff sought and obtained an order directing the defendants to appear before the court, in person or by attorney, on a date and time specified, to show cause why their pleadings should not be stricken and final judgment entered against them on the plaintiff's motion for judgment on the pleadings. Service of the order to show cause upon the defendants was attempted by mailing a copy of the order to 'John J. Hamilton, 25 West Flagler Street, Miami, Florida.'

Prior thereto Hamilton had telephoned the plaintiff's attorney, from his New York office and discussed a matter relating to the case. In the course of that telephone conversation Hamilton had informed the plaintiff's attorney that he, Hamilton, was in process of moving his law office from New York to Miami. Although not amenable to personal service because he was in New York, Hamilton had voluntarily submitted to the jurisdiction of the court in the case.

The notice to Hamilton of the rule to show cause, mailed to him at the 25 West Flagler Street address, failed to reach him, as did the earlier notice sent there. The result was that no response was made to the order to show cause, and the...