Padgett v. First Federal Sav. & Loan Ass'n of Santa Rosa County

• Decision Date: 10 December 1979
• Docket Number: No. NN-40,NN-40
• Citation: 378 So.2d 58
• Parties: David PADGETT and Marty Padgett, Husband and Wife et al., Appellants, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF SANTA ROSA COUNTY, Florida et al., Appellees.
• Court: Florida District Court of Appeals

Page 58

378 So.2d 58

David PADGETT and Marty Padgett, Husband and Wife et al., Appellants, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF SANTA ROSA COUNTY, Florida et al., Appellees.

No. NN-40.

District Court of Appeal of Florida, First District.

Dec. 10, 1979.

Frank O. Burge, Jr., and James H. Wettermark of Frank O. Burge, Jr., P. C., Birmingham, Ala., and James R. McAtee, Pensacola, Hugh V. Smith, Jr. of Mizell, Smith & Moore, Montgomery, Ala., for appellants.

Donald H. Partington of Clark, Partington, Hart & Hart, Pensacola, for appellees.

LARRY G. SMITH, Judge.

In this case appellants suffered the entry of a final judgment of foreclosure against property owned by them in Escambia County, and dismissal with prejudice of their complaint against the mortgagee and other defendants. They rely for reversal upon alleged errors committed by the trial judge in denying their motion for continuance, motion for jury trial, and in granting the motions of the several defendants for involuntary dismissal of their complaint with prejudice. We affirm in part and reverse in part.

This litigation commenced when appellants filed a three count lawsuit against several defendants, among them First Federal Savings and Loan Association of Santa Rosa County, appellee, the holder of mortgages upon appellants' property in Escambia County. Count One sought an accounting and to enjoin foreclosure of First Federal's mortgages; Count Two sought damages for alleged lost profits, loss of funds invested in construction of improvements, and other damages; and Count Three sought removal of clouds upon title to real estate and damages for disparagement of title against certain lienholders. The matters of which appellants complain may be briefly summarized as follows: They allege that when they applied for a loan with First Federal to construct a complex of townhouses, defendant Walish, the President of First Federal, recommended to them defendant Edward Porter and Trend Corporation as reputable building contractors, and made several other representations concerning the services of Porter and Trend. Appellants allege that these representations were false; that in fact Walish and Porter were business partners, that they were guilty of diverting materials intended for the townhouse project to construct a home for Walish; and that First Federal improperly expended and appropriated funds from appellants' construction account. They further alleged that as a result of these and other actions they were unable to complete the townhouse project, and suffered severe monetary loss. First Federal denied the allegations of the complaint and filed a counterclaim seeking foreclosure of its mortgages. Appellants demanded jury trial on all issues "so triable". After substantial discovery was had, appellants dismissed the complaint against the various lienholder defendants in Count Three.

In November, 1978, appellants' attorney filed a motion to withdraw as their counsel. ¹ On November 15, 1978, the trial judge authorized withdrawal and gave appellants five days within which to secure successor counsel. ² Thereafter, on November 28, 1978, First Federal's attorney filed a notice of trial notifying appellants that the matter was set for trial on January 24, 1979. On January 23, 1979, an attorney from Winter Park and one from Pensacola filed a notice of appearance as new counsel for appellants. On the same date, they filed in appellants' behalf a motion for continuance of the January 24 trial based (among other grounds) upon their recent acquisition of substitute counsel, claiming that their new counsel had not had time to properly prepare for trial. ³ The Pensacola attorney appeared for the hearing on the motion for continuance, but the Winter Park counsel did not. Neither of the appellants appeared, and no evidence was presented by testimony or affidavits setting forth any facts to justify or excuse delay in obtaining counsel, nor to explain their belated motion for continuance.

The record of exactly what took place before the trial court at the time of hearing of appellants' motion for continuance and jury trial is instructive. First, it reveals that appellants' Pensacola counsel was totally unfamiliar with the file, since he had been only a few days earlier contacted by appellants' Winter Park counsel and asked to file the motion for continuance. Hearing on this motion was scheduled for January 24, at the same time scheduled for commencement of the trial. After brief discussion, counsel for First Federal related to the court his assessment of the status of the case, and he then stated:

"The issues of the mortgage foreclosure can proceed before the court. If they want to try their claim for damages we can sever that out and let them try it some day. The bank is solvent and can respond to it, if they want to try that claim."

Then counsel for defendant Richard Walish spoke up, objecting strenuously to dividing the case into any parts on the grounds that the serious charges pending against his client were extremely damaging, and needed to be resolved. He asserted to the court that the charges in the complaint had kept his client "literally unemployed and unemployable" and that the case had been dragging on for better than a year.

Counsel for appellants stated to the court:

"I don't believe the matter can be severed. I think the issues, just from what I can determine from reading the complaint and what little knowledge I have of the action, which is very, very little that the issues are so interrelated that severance would not do justice to this cause. I don't think it can be severed."

The trial judge, after reviewing the file, remarked that the case was about a year old, not ordinarily an old case, but that the failure of the Padgetts to appear was a matter of considerable concern to the court. He reflected upon the fact that appellants had allowed one attorney to withdraw, and had some forty-five to sixty days within which to further appear or respond in some manner to the order to obtain new counsel. Further, said the trial judge:

"And they come in at this late time on this date and this court has a whole day set aside for this hearing. I think they have been given all the leeway that they should have been given to prosecute their claim, that they should be here today in person, at least to explain why they were so dilatory in the seeking of counsel which apparently they were. I am not blaming it on counsel, because according to you they just made arrangements last week. And I think they were dilatory and I think that justice delayed is justice denied where people apparently are doing it for some ulterior motive. I don't know what. But if they really wanted to guard their claim they should have done it more expeditiously and I don't think that this court would be in error by announcing that we are going to go forward with this claim one way or the other today and we'll all take our best holds. . . ."

Upon announcement by the trial judge that the case would proceed, appellants' counsel stated that appellants had no witnesses available to testify, whereupon counsel for Walish moved for dismissal of the complaint against his client, and counsel for First Federal made a similar motion. Thereafter, the court acknowledged that an order would be entered that appellants' claim would be dismissed as to defendants Walish and First Federal. ⁴ The mortgage foreclosure proceeding was completed, and the property was subsequently sold.

The points relied upon by appellants for reversal, though not in the order presented, are: Whether the trial court abused its discretion in denying a continuance; whether the trial court committed error in denying appellants' right to trial by jury of the legal issues presented; and whether the failure of appellees to comply with the notice provisions of Florida Rule of Civil Procedure 1.440 and Local Rule 6 of the First Judicial Circuit worked a prejudice upon appellants which justifies a new trial.

As for denial of the motion for continuance, this is a case in which serious charges were being made by appellants against First Federal and the other defendants, and in which delay in final disposition was a matter of vital concern to the defendant seeking foreclosure and sale of the property. In oral argument as well as in the brief filed in behalf of appellants, attempts have been made to justify or explain away appellants' failure to promptly proceed with their lawsuit, or, in the alternative, to furnish the trial court with evidence which might serve as the basis for a reasoned decision on the part of the trial judge to grant a continuance. Unfortunately, we cannot accept counsel's statements of fact dehors the record, nor can we find fault with the trial judge for likewise refusing to grant a continuance based solely upon the grounds stated in the motion. ⁵ Not the slightest effort was made to support appellants' eleventh hour motion for continuance by affidavits, testimony, or requests for an opportunity to proffer any set of facts to be supported by sworn evidence at a later date to explain appellants' failure expeditiously to obtain counsel, or to proceed in proper person. We must conclude that the trial judge acted within his discretion, under all the circumstances, in refusing to grant a continuance. ⁶ We cannot find an abuse of discretion on the part of the trial judge based upon counsel's assertions of factual circumstances which do not appear in this record. ⁷

Next we consider appellants' contention that the denial of a continuance and dismissal of their complaint for damages deprived them of their constitutional right to a jury trial on all purely legal issues. It is well settled that once a timely demand for a jury trial has been made, it can only be waived or withdrawn by the consent of both parties. Barth v. Florida State Constructors Service, Inc., 327 So.2d 13 (Fla.1976); Rule 1.430(d), Florida Rules of...