Wilson v. Woodward
| Decision Date | 12 June 1992 |
| Docket Number | No. 91-02294,91-02294 |
| Citation | 602 So.2d 547 |
| Parties | George L. WILSON, as Trustee, Appellant, v. Mark J. WOODWARD, Appellee. 602 So.2d 547, 17 Fla. L. Week. D1470 |
| Court | Florida District Court of Appeals |
Raymond L. Bass of Bass & Chernoff, Naples, for appellant.
Robert G. Menzies of Roetzel & Andress, P.A., Naples, for appellee.
The appellant, George L. Wilson, Trustee, challenges a partial summary judgment entered against him in an action arising out of a real estate transaction. We find that the trial court erred by determining that no material issue of fact existed and that the appellee, Mark J. Woodward, was entitled to a partial summary judgment as a matter of law. We, accordingly, reverse and remand for further proceedings.
On or about March 12, 1989, Mr. Wilson entered into a contract to sell certain real estate. The buyer's rights under this contract were subsequently assigned to Mr. Woodward. The written contract required that all deposits were to be placed with the escrow agent, Re/Max Realty Group. The sum of $55,000 was placed in escrow pursuant to this requirement.
Although the agreement contained a fixed closing date, it also provided that Mr. Woodward had the right to extend that date by two months if he paid, prior to the closing date, an extension fee in an amount equal to one per cent of the purchase price to the escrow agent. He was also allowed a second two month extension under the same terms and conditions. Mr. Woodward exercised his right to both extensions. On each occasion he delivered a check in the amount of $34,662.50 to Mr. Wilson's attorneys. The checks were made payable to the attorneys' escrow account and were placed in a separate interest bearing account.
After it became apparent to Mr. Wilson's attorneys that the sale was not going to close, the extension fees, together with interest thereon, were first forwarded to Re/Max and later deposited in the registry of the court.
When the sale of the property was not completed because of Mr. Woodward's default, Mr. Wilson filed an action against Mr. Woodward seeking a judgment in the amount of the deposit made to Re/Max and the extension fees paid to his attorneys. Mr. Woodward filed a motion for partial summary judgment seeking the return of the extension fees he had deposited in escrow with Mr. Wilson's attorneys. He contended that since these funds were not deposited with the escrow agent named in the contract, they were not subject to Mr. Wilson's claim.
Mr. Wilson's attorney did not appear at the summary judgment hearing because of a secretarial error in the attorney's office. An affidavit in opposition to the motion for partial summary judgment was filed the day of the hearing. Although Mr. Wilson's attorney did not appear at the hearing, the court granted Mr. Woodward's motion and entered an order the same day. A week later Mr. Wilson, pursuant to Florida Rule of Civil Procedure 1.530 and 1.540(b), moved for relief from the judgment and for a rehearing. The motion alleged that Mr. Wilson's attorney was not present at the hearing and an affidavit in opposition to the motion was not timely filed because the attorney's secretary made a mistake and did not calendar the hearing pursuant to the notice of hearing. The trial court denied the motion without stating whether it was denying the motion for relief from judgment, or if it had granted that part of the motion and then, after considering the affidavit and the rest of the record, was denying the motion for rehearing. This timely appeal followed.
Mr. Wilson's motion should have been granted on both of the grounds it set forth. Although the court has the authority to discipline counsel for failure to comply with the rules of civil procedure, ordinarily any punishment should be imposed upon the attorney and not the litigant. Beasley v. Girten, 61 So.2d 179 (Fla.1952); Anthony v. Schmitt, 557 So.2d 656 (Fla. 2d DCA1990), approved, Del Duca v. Anthony, 587 So.2d 1306 (Fla.1991). In this case, the attorney presented uncontroverted evidence that he failed to appear at the hearing because of a mistake and not because of any wilful and flagrant act. Mr. Wilson's right to present a defense to Mr. Woodward's claim to the extension fees should not be taken from him because of this mistake. Beasley; Anthony. Pursuant to the well recognized principle that rule 1.540(b) should be liberally construed, Mr. Wilson's motion for relief from...
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