State Dept. of Transp. v. Plunske

• Decision Date: 12 May 1972
• Docket Number: No. 71--950,71--950
• Parties: STATE of Florida DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida, Appellant, v. Paul PLUNSKE, State Paving Corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 337

267 So.2d 337

STATE of Florida DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida, Appellant, v. Paul PLUNSKE, State Paving Corporation, et al., Appellees.

No. 71--950.

District Court of Appeal of Florida, Fourth District.

May 12, 1972.

Barbara McPherson, Joseph C. Young and Geoffrey B. Dobson, Gen. Counsel, Tallahassee, for appellant.

No appearance for appellees.

PER CURIAM.

This appealed order ostensibly entered on stipulation is void and reversed for the following reasons:

1. The notice of hearing was insufficient. It was oral and its bizarre method of transmittal to appellant's counsel in Tallahassee and the fact that it was not received by counsel a reasonable length of time before the time specified for hearing (counsel had less than two hours notice and was about 400 miles away in an inconvient location when reached indirectly) renders same legally insufficient and the action taken consequent to it invalid.

F.R.C.P. 1.090(d), 30 F.S.A. plainly requires that 'a copy of the notice of the hearing thereof shall be served A reasonable time before the time specified for the hearing.' (Emphasis supplied.) That concept of fairness and due process was well discussed in Prunty v. State, Fla.App.1969, 226 So.2d 448,

'No rule is more firmly founded in the jurisprudence of this state than that it is a denial of due process of law to hold a hearing on a motion without notice to the parties involved in an adversary proceeding and to enter an order on the motion without first giving the parties affected notice and an opportunity to be heard before a party's rights are taken away. See, for example, Brooker v. Smith, 101 So.2d 607 (Fla.App.1958).

'This rule was stated by the Supreme Court of Florida in Mayflower Inv. Co. v. Brill, 137 Fla. 287, 188 So. 205 (1939), as follows:

'It is fundamental that due process guarantees to a party notice and an opportunity to be heard before his rights are taken away from him by order decree or judgment of any court. See Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215; Glazer v. Rosoff, 120 Conn. 120, 179 A. 407; Hunter v. May, 161 Tenn. 155, 25 S.W.2d 580."

Federal Rule of Civil Procedure 6(d) likewise requires reasonable notice of hearings. It prescribes five days, but this time limit isn't hard and fast, provided the party had actual notice and Time to prepare. See Herron v. Herron, 5th Cir. 1958, 255 F.2d 589, and Marshall Durbin Farms, Inc. v. National Farmers Organization, Inc., 5th Cir. 1971, 446 F.2d 353.

2. The person attending the so-called hearings was without authority to enter into a settlement or stipulation and did not, in fact, do so. 15 Am.Jur.2d, Compromise and Settlement, § 9. Court and counsel had specific written notice from the Department of Transportation's counsel, before entry of appealed order, that Mr. Cox, a non-lawyer, was not authorized to enter into stipulations or accept notice ¹ and that the Department of Transportation did not agree to such stipulation.

3. There is no evidence that appellant authorized or ratified the purported settlement. Walters v. Boscia, Fla.App.1965, 179 So.2d 133; Palm Beach Royal Hotel, Inc. v. Breese, Fla.App.1963, 154 So.2d 698; Bursten v. Green, Fla.App.1965, 172 So.2d 472.

Finally, it is the policy of the law to encourage and favor the compromise and settlement of controversies when such settlement is entered into fairly and in good faith by competent parties. 6 Fla.Jur., Compromise and Settlement, § 4. However, settlements forced or not agreed serve to deprive a litigant of due process and his proper day in court, and hence cannot be sanctioned.

The order is reversed and the cause remanded for further proceedings.

Reversed and remanded.

WALDEN and OWEN, JJ., concur.

MAGER, J., dissents.

MAGER, Judge (dissenting):

The determination of whether there was sufficient notice of hearing or whether such notice was reasonable is dependent upon the circumstances of the particular case. Likewise the question of the authority to enter into a settlement is also a determination dependent upon the circumstances surrounding the transaction. A review of the record furnished by the Department of Transportation (DOT) does not fully support its position; nor has DOT sustained the burden of demonstrating error to the extent of an unrestricted reversal of the orders under review.

The affidavit of the assistant attorney for DOT reflects a meeting between all concerned parties on Tuesday, July 6, 1971, for the purpose of discussing various proposals regarding the construction of some type of protective barrier between the landowners' property and the proposed major access 5-lane highway. In this affidavit the following representation appears:

'. . . (T)hat the Department proposed to construct a chain-link fence and landscaping and guardrail to protect the plaintiffs' property; that the Department also indicated that it would be agreeable to construct a concrete block decorative wall or lattice wall in place of the chain-link fence, but the Department would not agree to the construction of a poured, re-enforced, concrete wall because this would be prohibitively expensive; . . .'

The affidavit further indicated that the Department would be prepared to attend a hearing 'at the end of the week' with no agreement being made as to the method of notice of hearing. The affidavit, however, does reflect that counsel for the landowners indicated he would contract the district engineer of DOT regarding the time and place of such hearing.

The record in this case reflects that the district engineer's office was called late in the afternoon on Wednesday, July 7, at which time the assistant district engineer was advised of a hearing to be held before the trial judge on Thursday, July 8, 1971, at 11 A.M. The affidavit of the...