Rude v. Golden Crown Land Development Corp., 87-2570

• Decision Date: 09 March 1988
• Docket Number: No. 87-2570,87-2570
• Citation: 521 So.2d 351,13 Fla. L. Weekly 1057
• Parties: 13 Fla. L. Weekly 1057 Margaret R. RUDE, David Rude, Shirley R. Shelby and Donald H. Shelby, Appellants, v. GOLDEN CROWN LAND DEVELOPMENT CORPORATION, M.J. Steiminger and Lillian Steiminger, his wife, Fulton I. Connor and Gladys G. Connor, his wife, Charles Karon and Peter Karon, DeSoto County, Florida, a political subdivision of the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 351

521 So.2d 351

13 Fla. L. Weekly 1057

Margaret R. RUDE, David Rude, Shirley R. Shelby and Donald H. Shelby, Appellants, v. GOLDEN CROWN LAND DEVELOPMENT CORPORATION, M.J. Steiminger and Lillian Steiminger, his wife, Fulton I. Connor and Gladys G. Connor, his wife, Charles Karon and Peter Karon, DeSoto County, Florida, a political subdivision of the State of Florida, Appellees.

No. 87-2570.

District Court of Appeal of Florida,

Second District.

March 9, 1988.

Jack O. Hackett, II, of Farr, Farr, Haymans, Moseley, Emerich and Sifrit, P.A., Punta Gorda, for appellants.

James M. Beesting of Beesting & Beesting, Arcadia, for appellee Golden Crown Land Development Corp.

Gary Alan Vorbeck of Vorbeck & Vorbeck, P.A., Arcadia, for appellee DeSoto County, Florida.

THREADGILL, Judge.

The appellants, plaintiffs below, challenge the trial court's order granting a motion to vacate the final judgment entered in their favor in a boundary dispute. The appellants also contend the trial court erred in allowing a third party to intervene after entry of the final judgment. We agree and reverse.

Appellants are the fee simple owners of property in DeSoto County, Florida adjacent to appellees, defendants' property. County records indicated that the western boundary of the defendants' property was approximately 600 feet west of the appellants' eastern boundary, creating substantial legal encroachment and a record cloud on appellants' title. The appellants filed a complaint for declaratory judgment seeking to establish the boundary and quiet title. After a bench trial, the court on April 15, 1986, entered judgment for the appellants finding the true boundary to be the line established by the appellants' survey. The judgment was not appealed.

On April 2, 1987, almost a full year after the entry of the final judgment, the defendants filed a motion to vacate pursuant to Florida Rule of Civil Procedure 1.540(b). The motion asserted: (1) excusable neglect on the ground that their attorney was incompetent; (2) that the judgment was void because the court lacked subject matter jurisdiction; and (3) that the judgment was void for failure to join DeSoto County as a indispensable party. DeSoto County filed a motion to intervene and a motion to vacate the final judgment.

Attached to the defendants' motion to vacate were two affidavits. One contained the statement of a witness who was a surveyor and chairman of the DeSoto County Commission, stating that he had been given the wrong trial date by trial counsel, and that the attorney had been drinking when he interviewed him the week before trial. The other affidavit contained the statement of a corporate officer of Golden Crown, one of the defendants below, indicating that during the pendency of the cause she believed the attorney had rehabilitated himself and was diligently preparing the case for trial.

The judge who presided over the trial also heard the motion to vacate. No witnesses were called nor were the affidavits offered into evidence. The court, nevertheless, granted the motion to vacate and the motion to intervene. The appellants filed this notice of appeal.

A trial judge may in equity vacate a judgment in order to achieve fairness, but the court's discretion is not unlimited. The moving party must produce sufficient evidence of mistake, accident, excusable neglect or surprise as contemplated by rule 1.540(b), before the court's equity jurisdiction may be invoked. Absent such evidence, a court's vacation of final judgment constitutes an abuse of discretion. John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA 1980); Claffey v. Serafino, 338 So.2d 270 (Fla. 2d DCA 1976). We find the affidavits attached to the motion to vacate and the arguments of appellees to be insufficient grounds for vacating the judgment.

We first address the defendants' contention that the order should be vacated because their attorney was incompetent. We find that they must have been aware of the attorney's condition prior to trial as the appellants had filed a motion requesting that they obtain new counsel and as a trial date had been cancelled as a result of this attorney's...