Seven-Up Bottling Co. of Miami v. George Const. Corp., SEVEN-UP

• Decision Date: 07 July 1964
• Docket Number: No. 63-874,SEVEN-UP,63-874
• Citation: 166 So.2d 155
• Parties: BOTTLING COMPANY OF MIAMI, Inc., a Florida corporation, Appellant, v. GEORGE CONSTRUCTION CORP., a Florida corporation, and George Vizenthal, Appellees.
• Court: Florida District Court of Appeals

Page 155

166 So.2d 155

SEVEN-UP BOTTLING COMPANY OF MIAMI, Inc., a Florida corporation, Appellant, v. GEORGE CONSTRUCTION CORP., a Florida corporation, and George Vizenthal, Appellees.

No. 63-874.

District Court of Appeal of Florida, Third District.

July 7, 1964.

Guilmartin & Bartel, Miami, for appellant.

Stern, Hutner & Baxter, Miami, for appellees.

Before CARROLL, HORTON and TILLMAN PEARSON, JJ.

TILLMAN PEARSON, Judge.

The appellant, Seven-Up, filed an independent action seeking relief from a prior decree of foreclosure upon the ground that the decree was obtained by fraud upon the court, collusion, perjury of a witness and a party, and fabrication of testimony between a witness and a party. The trial judge, who had tried the foreclosure action, heard the second action and upon motion of the defendant, entered a summary final decree in which he denied relief to the plaintiff. We reverse for irregularities in procedure and remand for trial of the issues raised.

The first action was initiated by appellees, George Construction Corporation and George Vizenthal, to establish and foreclose a mechanics' lien against the property of Seven-Up. This trial resulted in a decree in favor of the construction corporation and Vizenthal. Seven-Up appealed from the decree and this Court reversed in part. Seven-Up Bottling Co. of Miami v. George Constr. Corp., Fla.App.1963, 156 So.2d 167.

During the pendency of the first appeal before this Court the appellant, Seven-Up, sought a remand to the trial court in order to present newly discovered evidence. This remand was denied. See opinion On Petition for Rehearing, Seven-Up Bottling Co. of Miami v. George Constr. Corp., supra, at 169.

The present action is an effort by Seven-Up to proceed by an independent action as provided in Rule 1.38(b), Florida Rules of Civil Procedure, ¹ 30 F.S.A.

On November 7, 1963, the appellees, defendants in the trial court, filed their answer and included as one of the prayers therein the following:

'(b) That Defendants be granted a summary decree based on the record before this Court and set forth herein;'

On November 19th the appellees filed a motion for summary decree with attached affidavits. At the time of the service of this motion, a notice of hearing by special appointment was served. The notice of hearing was served on November 18th and set 'defendants' motion for summary decree' for hearing on November 21, 1963.

On November 20th plaintiff moved to strike the notice of hearing or in the alternative, for a continuance of the hearing upon the ground that the scheduled hearing violated the ten-day notice requirement of Rule 1.36(c), Florida Rules of Civil Procedure. This motion to strike or continue was denied. The court heard the motion for summary decree on November 21st and at the close of hearing requested memoranda of law. On December 6th the court entered the summary decree which is now appealed.

Appellant's first point urges error in the granting of a summary decree on three days' notice. Reversal upon this point is necessary. Rule 1.36(c) of the Florida Rules of Civil Procedure provides expressly: '(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. * * *' Summary judgment or decree is a drastic remedy and must be cautiously administered. Cleveland Trust Company v. Foster, Fla.1957, 93 So.2d 112. Only by a scrupulous adherence to the rules provided for summary decrees can the courts be sure that this stringent remedy is not abused. It is clear from the language of the rule that at least ten days must elapse from the time that the motion is served to the date of the hearing thereon. This did not occur in the instant case. The appellant diligently brought the matter to the attention of the trial court.

It is apparent that the appellee persuaded the trial judge that inasmuch as his answer, filed sometime prior to the motion, had included a prayer for a summary decree that such a prayer was sufficient to provide a ten-day lapse. We need not determine whether or not a prayer for a summary decree is property included in an answer, because in this case the defendant-appellee filed a separate motion and noticed that motion for hearing.

Appellee suggests that the error as to the violation of the rule was harmless because the court entered the summary final decree after having examined the file in the first action, together with the complaint with attached exhibits in the instant independent action, and reached its conclusion exclusively upon these pleadings. In this connection it is urged that the trial court did not consider the affidavits attached to the motion of the defendant-appellee.

We cannot agree that the error was harmless. The burden of the complaint is that the defendant, plaintiff in the prior action, by fraud, perjury and collusion, impugned the judicial process. This is a serious charge and is made in detail. As such, it merits a full opportunity to present all available facts to the court. If the charge is proved, relief must be given.

In Alepgo v. Pozin, Fla.App.1959, 114 So.2d 645 in dealing with a charge of fraud this Court held:

'Summary judgment is not a substitute for a trial; and fraud is a subtle thing requiring full explanation of the facts and circumstances of the alleged wrong to determine if they collectively constitute fraud. Since the whole context is necessary for the determination, it is seldom that one can determine the presence or absence of fraud without a trial.'

The...