Trupei v. City of Lighthouse Point

• Decision Date: 08 April 1987
• Docket Number: No. 85-1982,85-1982
• Citation: 12 Fla. L. Weekly 973,506 So.2d 19
• Parties: 12 Fla. L. Weekly 973 Michael TRUPEI, Appellant, v. The CITY OF LIGHTHOUSE POINT, Florida, and the City of Lighthouse Point Police Department, Appellees.
• Court: Florida District Court of Appeals

Page 19

506 So.2d 19

12 Fla. L. Weekly 973

Michael TRUPEI, Appellant, v.The CITY OF LIGHTHOUSE POINT, Florida, and the City of Lighthouse Point Police Department, Appellees.

No. 85-1982.

District Court of Appeal of Florida Fourth District.

April 8, 1987.

Stay and Rehearing Denied May 19, 1987.

Oliver Addison Parker, Fort Lauderdale, for appellant.

Philip J. Montante, Jr., of Philip J. Montante, Jr., P.A., Pompano Beach, for appellees.

DOWNEY, Judge.

On October 23, 1984, appellees filed a Verified Complaint for Rule to Show Cause and Final Order of Forfeiture of a 1979 Cessna 210 Centurion II aircraft in which appellant claimed an interest.Thereafter, on November 27, 1984, appellees filed a request for admissions to appellant, mailing same to his last known non-prison address.However, at the time appellant was not yet a party to the action nor did he receive the request for admissions as he had lost the addressee house to foreclosure.

In December, 1984, appellant filed a motion to dismiss the complaint, which was never ruled upon.Later, in February, 1985, appellees noticed appellant for a March deposition at appellees' attorney's office.However, appellant was then a prisoner in a federal prison at Maxwell Air Force Base in Montgomery, Alabama.When appellees moved for a default and sanctions for failure to appear for deposition, appellant filed an answer incorporating his previous motion to dismiss, and also filed a response to appellees' motion for default, alleging appellees' failure to comply with Florida Rule of Civil Procedure 1.310(a), in that appellant was in federal prison and appellees had not obtained leave of court to depose him.Appellant also filed a response to the earlier request for admissions, and a motion to allow late response to request for admissions, pointing out that, when first filed, he was not a party to the cause and the request for admissions was sent to the wrong address.The court denied appellees' motion for default for failure to comply with Rule 1.310(a) and because the request for admissions was not properly served.Upon the representation that appellant was to be tried in Broward County on July 8, 1985, the court set his deposition there for July 9, 1985.

Appellant did not appear for trial on July 8, 1985, because the state did not secure his remand from federal custody therefor.Thus, neither was he present for the scheduled deposition.Appellant's attorney tried to arrange a new deposition date with counsel for appellees without success.Instead, appellees filed a motion for default for appellant's failure to comply with the prior discovery order.The trial court held a hearing on July 18, 1985, and thereafter, on July 22, 1985, struck appellant's...