Leon Shaffer Golnick Advertising, Inc. v. Cedar, 82-192

• Citation: 423 So.2d 1015
• Decision Date: 29 December 1982
• Docket Number: No. 82-192,82-192
• Parties: LEON SHAFFER GOLNICK ADVERTISING, INC., d/b/a The Golnick Company, Appellant, v. Jerry CEDAR, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1015

423 So.2d 1015

LEON SHAFFER GOLNICK ADVERTISING, INC., d/b/a The Golnick Company, Appellant, v. Jerry CEDAR, Appellee.

No. 82-192.

District Court of Appeal of Florida Fourth District.

Dec. 29, 1982.

Charles H. Brodzki of F. Ronald Mastriana, P.A., Fort Lauderdale, for appellant.

John A. Friedman of Casoria, Goff & Friedman, P.A., Fort Lauderdale, for appellee.

GLICKSTEIN, Judge.

This is an appeal from a final judgment, which we reverse and remand. In doing so, we wish to comment upon the misunderstanding and misuse of the Florida Rules of Civil Procedure; the necessity for consideration of amendments thereto because of what we believe to be other than isolated misuse; and a practice we would like to see terminated.

Appellee, who formerly was employed by appellant, brought this action against it to collect commissions, and to be reimbursed for expenses and compensated for vacation time. The employer's attorney filed only a "Notice of Appearance" within twenty days of service of process on his client. Appellee moved for default, and hearing was set on the motion. A week prior to the hearing, appellant's attorney filed an answer, affirmative defenses and a motion to dismiss. Appellant's attorney did not appear at the hearing on the motion; and the trial court noted this non-appearance in the default judgment which it entered and refused to vacate. At the hearing on the motion to vacate, both attorneys made unsworn representations about the non-appearance of appellant's attorney at the hearing on appellee's motion for default. Final judgment was entered, and rehearing denied.

First, the misunderstanding was that of the trial court as to the effect of Florida Rule of Civil Procedure 1.500(b) and (c). ¹ When appellant filed its answer, affirmative defenses and motion to dismiss--days prior to the hearing on the motion for default--it deprived the trial court of the authority to consider whether a default should be entered or to enter one. ² The hearing on the motion was superfluous; and the attorney's non-appearance was legally justified, albeit rude if he was noticed and failed to contact the court.

Second, the misuse was that of appellant's attorney by filing a notice of appearance admittedly because he knew the clerk could not enter a default with the notice in the court file, and doing so for the purpose of getting additional time in which to plead. We believe this practice is used often by others, and we condemn it. ³

Third, the amendment we urge is with respect to FLORIDA RULE OF CIVIL PROCEDURE 1.500(A), (B) AND (C)⁴ wherein the word "paper" is being used by attorneys as their justification for filing notices of appearance--nothing more--to gain time for the filing of pleadings. We urge the elimination of such word and its substitution with the words "motion or responsive pleading."

Fourth, the practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. ...