J.J.K. International, Inc. v. Shivbaran

• Court: Florida District Court of Appeals
• Writing for the Court: Polen
• Citation: J.J.K. International, Inc. v. Shivbaran, 985 So.2d 66 (Fla. App. 2008)
• Decision Date: 25 June 2008
• Docket Number: No. 4D07-1487.,4D07-1487.
• Parties: J.J.K. INTERNATIONAL, INC., Appellant, v. Deoanand SHIVBARAN and Nurelene Shhadat, jointly and severally, Appellees.

985 So.2d 66

J.J.K. INTERNATIONAL, INC., Appellant, v. Deoanand SHIVBARAN and Nurelene Shhadat, jointly and severally, Appellees.

No. 4D07-1487.

District Court of Appeal of Florida, Fourth District.

June 25, 2008.

Allison Grant and Eric C. Edison of Shapiro, Blasi, Wasserman & Gora, P.A., Boca Raton, for appellant.

Cary A. Lubetsky, Joseph J. Huss, and Monica Espino of Krinzman Huss & Lubetsky, Miami, for appellees.

POLEN, J.

Appellant J.J.K. International, Inc., appeals the trial court's denial of its amended motion for rehearing and/or motion to vacate order following the trial court's dismissal of J.J.K.'s complaint with prejudice. We hold that the trial court abused its discretion in dismissing J.J.K.'s complaint and reverse.

In March 2006, J.J.K. filed a complaint against Appellees, Deoanand Shivbaran and Nurelene Shhadat. J.J.K. was the builder/developer and owner of a residential townhouse development. J.J.K. executed and recorded a Declaration of Covenants, Easements and Restrictions for the development, one of which restricted the use and resale of the properties by prohibiting buyers from selling their lots for more than 115% of the purchase price for two years after the lots were purchased. If a buyer sold his lot for more than 115% of the purchase price within this time frame, J.J.K. would have a right of repurchase for the original purchase amount. J.J.K.'s complaint alleged that Keith and Elsa Howard had purchased a lot and then sold it to Shivbaran and Shhadat for more than 115% of the original purchase price in violation of the Declaration.

Shivbaran and Shhadat filed a motion to dismiss asserting that J.J.K.'s only remedy was with the Howards and that the action should be dismissed for failure to join an indispensable party. A hearing was specially set for the motion. Due to a scheduling confusion at J.J.K.'s counsel's office, J.J.K.'s counsel believed the hearing had been cancelled and did not appear. Counsel's secretary had accidentally marked "CANCELLED" by the hearing on counsel's calendar when canceling other hearings and depositions scheduled for that day. Appellees' counsel called J.J.K.'s counsel's office a few minutes before the hearing to determine if anyone was going to show up. When J.J.K.'s counsel realized there had been a mistake, he called Appellees' counsel's cell phone but no one answered.

The trial court orally granted Appellees' motion to dismiss with prejudice. J.J.K. immediately filed a motion for rehearing or in the alternative to vacate the order pursuant to Rule 1.540 and attached affidavits of trial counsel and trial counsel's secretary explaining the scheduling confusion. The trial court denied the motion for rehearing. J.J.K. now appeals the denial of its motion and argues that the denial was an abuse of discretion. We agree and reverse.

A denial of a motion for rehearing is reviewed under the abuse of discretion standard. See Gibson Trust, Inc. v. Office of the Atty. Gen., 883 So.2d 379 (Fla. 4th DCA 2004). "Our standard of review of an order ruling on a motion for relief from judgment filed under Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of the trial court's discretion." Snipes v. Chase Manhattan Mortg. Corp., 885 So.2d 899, 900 (Fla. 5th DCA 2004).

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the `reasonableness' test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). Rule 1.540 provides in relevant part: "On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . ." Fla. R. Civ. P., Rule 1.540(b). Florida courts have long recognized that this rule should be liberally construed. Wilson v. Woodward, 602 So.2d 547, 549 (Fla. 2d DCA 1992); Fla. Aviation Acad., Dewkat Aviation, Inc. v. Charter Air Ctr., Inc., 449 So.2d 350, 353 (Fla. 1st DCA 1984).

We hold that the failure of J.J.K. and its counsel to appear for the...