Joseph Mourning and Taneisha Mourning v. Ballast Nedham Construction, Inc.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2007
JOSEPH MOURNING and TANEISHA MOURNING,
Appellants,
v.
BALLAST NEDAM CONSTRUCTION, INC., a foreign corporation,
Appellee.
No. 4D06-2557
[September 26, 2007]
CORRECTED OPINION
HAZOURI, J.
We withdraw our prior opinion, and substitute the following corrected
opinion in its place.
Joseph and Taneisha Mourning (Mourning) appeal from a non-final
order granting Ballast Nedam Construction, Inc.’s (Ballast) motion to
vacate the final judgment which had been entered in favor of Mourning.
The issue before this court is whether the trial court reversibly erred
in vacating the final judgment against Ballast based on the trial court’s
failure to serve Ballast with the order resetting the trial on damages.
Mourning contends the trial court’s failure to serve the order was
remedied by Mourning subsequently mailing Ballast a copy of the order.
We agree and reverse.
In April of 2003, Joseph Mourning was involved in a single-car
automobile accident while driving on a road that was under construction.
Mourning and his wife subsequently filed a lawsuit against Ballast,
alleging that Ballast negligently maintained the construction site. A
default was entered against Ballast for failing to respond to the
complaint.1
After entry of the default judgment, Mourning filed a unilateral pretrial
statement on August 19, 2005, a copy of which was sent certified mail to
Ballast. In anticipation of the trial in September 2005, Mourning also set the
1
After entering the default on liability, the trial court entered an order
dated April 22, 2005, setting the trial on the unliquidated damages to be
held during the September 12, 2005, docket. This order was not served
on Ballast by the court or Mourning at the time of its entry. However,
Mourning subsequently mailed a copy of the order to Ballast which was
received by Ballast in June 2005. This case was not reached on the trial
docket of September 12, 2005 and thereafter Mourning sought a special
trial date. In response to Mourning’s request, the trial court entered an
order on October 5, 2005, resetting the trial for an eight-week trial
docket beginning November 7, 2005.
On October 15, 2005, Mourning mailed a copy of the court’s order to
Ballast.2 On December 12, 2005, the court conducted a jury trial on
Mourning’s unliquidated damages. Ballast failed to appear for the trial.
A verdict in the amount of $1,155,000 was entered in favor of Mourning.
Final judgment was entered on May 24, 2006, and amended on June 6,
2006, to add Ballast’s insurer to the final judgment.
On June 8, 2006, Ballast filed a motion to vacate the default
judgment.
Ballast argued that the damages judgment was
inappropriately entered and violated due process because Mourning, not
the trial court, had served Ballast with the order resetting the trial on
damages. By way of this motion, Ballast sought to have the damages
judgment set aside only on that specific basis. Ballast filed a separate
motion to set aside the entire default based on excusable neglect, which
is not the subject of this appeal.
At the hearing on Ballast’s motion to vacate the default judgment, the
trial court acknowledged that it did not serve a copy of the order
resetting the damages trial and concluded that, even though Ballast
received a copy of the order mailed by Mourning, the amended final
judgment had to be set aside because of the due process violation caused
by the court’s failure to serve the order setting trial in accordance with
the requirements of Florida Rule of Civil Procedure 1.440(c).
deposition of two treating physicians and sent notices to Ballast, one on
September 2, 2005 and the other on September 14, 2005. Ballast failed to
respond or to attend these depositions.
2 This order provides for mandatory attendance at the calendar call scheduled
for October 21, 2005. Because there were numerous cases set on the calendar,
one of the purposes of the calendar call was to set the actual trial date for any
individual case. By attending the calendar call, parties could be apprised when
their case would be reached during the eight-week period. Ballast failed to
attend the calendar call.
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Florida Rule of Civil Procedure 1.440(c) provides:
(c) Setting for Trial. If the court finds the action ready to
be set for trial, it shall enter an order fixing a date for trial.
Trial shall be set not less than 30 days from the service of
the notice for trial. By giving the same notice the court may
set an action for trial. In actions in which the damages are
not liquidated, the order setting an action for trial shall be
served on parties who are in default in accordance with rule
1.080(a).
Florida Rule of Civil Procedure 1.080(a) provides:
(a) Service; When Required. Unless the court otherwise
orders, every pleading subsequent to the initial pleading and
every other paper filed in the action, except applications for
witness subpoena, shall be served on each party. No service
need be made on parties against whom a default has been
entered, except that pleadings asserting new or additional
claims against them shall be served in the manner provided
for service of summons.
Although rule 1.080(a) provides that pleadings and papers generally
need not be served upon a defaulted party, Florida Rule of Civil
Procedure 1.080(h)(1)-(3) requires service of an order setting an action for
trial and the final judgment.
Florida Rule of Civil Procedure 1.080(h)(1)-(3) provides:
(h) Service of Orders.
(1) A copy of all orders or judgments shall be transmitted by
the court or under its direction to all parties at the time of
entry of the order or judgment. No service need be made on
parties against whom a default has been entered except
orders setting an action for trial as prescribed in rule
1.440(c) and final judgments that shall be prepared and
served as provided in subdivision (h)(2). The court may
require that orders or judgments be prepared by a party,
may require the party to furnish the court with stamped,
addressed envelopes for service of the order or judgment,
and may require that proposed orders and judgments be
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furnished to all parties before entry by the court of the order
or judgment.
(2) When a final judgment is entered against a party in
default, the court shall mail a conformed copy of it to the
party. The party in whose favor the judgment is entered
shall furnish the court with a copy of the judgment, unless it
is prepared by the court, and the address of the party to be
served. If the address is unknown, the copy need not be
furnished.
(3) This subdivision is directory and a failure to comply with
it does not affect the order or judgment or its finality or any
proceedings arising in the action.
It is uncontroverted that the trial court did not send the order of
October 5, 2005, to Ballast. It is uncontroverted that Mourning did in
fact send the order of October 5, 2005, setting trial to Ballast on October
15, 2005. It is further uncontroverted that the trial itself did not take
place until December 12, 2005, which is 58 days after Ballast received
notice of the jury trial docket.
Ballast argued, and the trial court accepted, that rule 1.440(c) and
rule 1.080(h)(1)-(3), must be strictly construed as bright-line rules that
the court must send out the order setting an action for trial. Ballast
further argued the failure of that to occur required the setting aside of
the default final judgment for unliquidated damages.
A trial court’s ruling on a motion to vacate under Florida Rule of Civil
Procedure 1.540 is reviewed under the abuse of discretion standard.
Rosso v. Golden Surf Towers Condo. Ass’n, 711 So. 2d 1298, 1300 (Fla.
4th DCA 1998). However, in this case there appears to be no factual
dispute upon which the trial court based its determination to vacate the
default final judgment. The trial court based its decision on a pure
question of law, i.e., that rule 1.440(c) and rule 1.080(h)(1)-(3) required
as a matter of law that the order setting the trial on the unliquidated
damages must be served by the court and not by Mourning’s counsel.
Therefore, since the court’s ruling was as a matter of law, our standard
of review is de novo.
In support of its position, Ballast cites Lauxmont Farms, Inc. v. Flavin,
514 So. 2d 1133 (Fla. 5th DCA 1987), Pierce v. Anglin, 721 So. 2d 781
(Fla. 1st DCA 1998), and Viets v. American Recruiters Enterprises, 922
So. 2d 1090 (Fla. 4th DCA 2006). We find these cases distinguishable.
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The underlying principle inherent in rule 1.440(c) is one of due
process. Rule 1.440(c) mandates the parties to litigation are entitled to
an order setting a case for trial and the order setting the case for trial
shall give at least thirty days notice from the entry of that order to the
trial date itself. See Bennett v. Cont’l Chems., Inc., 492 So. 2d 724 (Fla.
1st DCA 1986). This requirement of due process as it relates to claims
for unliquidated damages is reiterated in Lauxmont Farms, Pierce, and
Viets. Ballast relies heavily upon Lauxmont Farms, and asserts it is
squarely on point. The facts outlined in Lauxmont Farms are somewhat
limited and so it is questionable that it is “squarely on point” with the
instant case.
Lauxmont Farms involved an appeal from a judgment which awarded
unliquidated damages without a trial. Although a default judgment can
be entered to establish liability, a trial is necessary to establish
unliquidated damages. See Bowman v. Kingsland Dev., Inc., 432 So. 2d
660 (Fla. 5th DCA 1983). The Lauxmont Farms court held that the award
of unliquidated compensatory damages by summary judgment is error.
The court noted:
After the motion for summary judgment and
compensatory damages were [sic] granted, the attorney for
appellee sent a notice of nonjury trial to the appellant. The
notice was defective because the order was sent by the
opposing attorney rather than the court and did not give the
requisite thirty-days notice of trial. Fla. R. Civ. P. 1.440(c).
Lauxmont Farms did not attend the nonjury trial in which
the trial court awarded $1,600,000 in punitive damages and
$6,400 in attorney’s fees and costs.
Lauxmont Farms, 514 So. 2d at 1134. The court went on to state:
We have stated before that a party has a due process
entitlement to notice and an opportunity to be heard on
unliquidated damages pursuant to Florida Rule of Civil
Procedure 1.440. Bowman v. Kingsland Development, Inc.,
432 So. 2d at 663. Lauxmont Farms’ fundamental due
process rights were violated by the defective notice of
nonjury trial for both compensatory and punitive damages
as well as attorneys fees and costs.
Lauxmont Farms, 514 So. 2d at 1134.
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Ballast asserts that Lauxmont Farms establishes a bright-line rule
that not only must an order setting the case for trial set the trial at least
thirty days from the date of the order, but that the order must be sent by
the trial court. We disagree. The language in Lauxmont Farms referring
to the notice as being defective because it was sent by opposing counsel
rather than the court is unnecessary for the disposition in Lauxmont
Farms and is therefore dicta.
As noted earlier, the judgment for
unliquidated damages was determined by summary judgment rather
than a jury trial and Lauxmont Farms did not get an order setting its
case for trial with the requisite thirty days notice.
In Pierce, the court reversed a final judgment that was entered only on
a motion for default and affidavit without a trial on unliquidated
damages having been set or held. Unlike the instant case, no order
setting trial under rule 1.440(c) was ever entered or served upon
defendant Pierce.
In Viets, our court vacated a default judgment on the defendant’s
counterclaim because there was no trial held on the unliquidated
damages. There was not even a notice of trial in Viets, only an order on a
motion for default judgment and affidavit without any hearing. The
plaintiff/counter-defendant in Viets was given no opportunity to defend.
This court in Viets held these defects violated due process because there
was no notice or order setting the hearing on the motion for default
judgment and damages were awarded without a hearing.
Ballast argues that our court in Viets cites Lauxmont Farms with
approval. There is no specific discussion of the requirements of rule
1.440(c) in Viets, and we cited to Lauxmont Farms as support for vacating
a default judgment where there was a lack of due process. Mailing of a
notice or an order was not involved in Viets. In the instant case, there
was an order, it was served on Ballast, the order gave Ballast notice of
the calendar call, the duration of the trial docket, and the trial itself did
not take place until December 12, 2005. Ballast received due process
and chose not to show up and defend.
Although Ballast has cited to this court numerous cases involving the
question of the necessity of notice of setting a trial date for due process
purposes, in each instance either an order was not sent, a jury trial was
not held, or if a trial took place, the trial occurred before the thirty-day
requirement. To read into rule 1.440(c) in conjunction with rule 1.080
that the order setting a case for jury trial to be effective must be placed
in envelopes addressed to a defendant by the court itself is unreasonable
and adds nothing to the requirement to afford Ballast due process. We
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can discern no due process implication if Ballast receives the order
setting the trial docket in a timely fashion and that order comes in a
properly addressed envelope sent through the U.S. mail by Mourning’s
counsel. We fail to see the logic in permitting Ballast to ignore the order
and thereafter engage in “gotcha” tactics to set aside the final judgment.
The dissent advocates a bright-line rule that the order setting the
instant case for trial must be sent to Ballast by the trial court in order to
assure due process. However, the dissent fails to explain or delineate
how Ballast was deprived of due process by receiving the order setting
the case for jury trial in an envelope mailed by Mourning. It is the
identical order Ballast would have received had the order been posted by
the trial court. If Ballast were asserting any of the following: (1) that it
did not receive the order, or (2) that without receiving an order in an
envelope mailed by the court, it created doubt as to the order’s
authenticity, or (3) that the trial commenced less than 30 days from the
receipt of the order, then there would be due process implications. None
of that is alleged in the instant case.
The dissent lists a litany of cases to support her position concerning
bright-line rules. None of those cases except Bennett v. Continental
Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986), are germane to the
facts in this case. Even Bennett is distinguishable from the instant case
because in Bennett, the trial court never entered an order setting the
case for trial. The court in Bennett disapproved of what apparently was
a local procedure that parties scheduling non-jury matters simply have
the trial date and time reserved on the judge’s calendar. Additionally in
Bennett, the case could not be set for trial because it was not at issue.
The dissent also relies heavily on this court’s opinion in Stowe v.
Universal Property & Casualty Insurance Co., 937 So. 2d 156 (Fla. 4th
DCA 2006), in advocating a bright-line rule. However, this court in
Nicholson-Kenny Capital Management Inc. v. Steinberg, 932 So. 2d 321
(Fla. 4th DCA 2006), in fact made an exception to the bright-line rule in
the application of Florida Rule of Civil Procedure 1.820(h). In NicholsonKenny, this court would not permit Steinberg to engage in “gotcha”
tactics. The dissent attempts to distinguish this court’s departure from
an application of a bright-line rule in Nicholson Kenny by concluding that
the defendant in Nicholson Kenny “waived” the bright-line rule by
participating in the pretrial conference even though the plaintiff failed to
file a motion for a trial de novo. In the instant case, Ballast received the
order setting the case for trial, and without any explanation or
justification failed to appear to defend the jury trial for unliquidated
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damages. This failure to appear constitutes a waiver3 and such conduct
should not be countenanced.
The dissent’s reference to the Florida Supreme Court’s recent decision
in Campbell v. Goldman, 32 Fla. L. Weekly S320 (Fla. June 14, 2007), as
additional support for the application of a bright-line rule is misplaced.
The issue in Campbell is whether a proposal for settlement could be
enforced without citation to section 768.79, Florida Statutes. The
majority in Campbell held that the attorney fee-shifting provision of a
proposal for settlement was created by statute and because it is penal
and in derogation of the common law, rule 1.442 and section 768.79
must be strictly construed. Id. Neither of the rules implicated in the
instant case is penal in nature nor in derogation of the common law.
To elevate form over substance under the facts of this case does
nothing to advance the due process of law. We therefore reverse and
remand for further proceedings consistent with this opinion.
Reversed and Remanded.
POLEN, J., concurs.
GUNTHER, J., dissents with opinion.
GUNTHER J., dissenting.
I respectfully dissent.
3
The definition of waiver in BLACK’S LAW DICTIONARY is as follows:
The intentional or voluntary relinquishment of a known right, or
such conduct as warrants an inference of the relinquishment of
such right, or when one dispenses with the performance of
something he is entitled to exact or when one in possession of any
right, whether conferred by law or by contract, with full knowledge
of the material facts, does or forbears to do something the doing of
which or the failure of forbearance to do which is inconsistent
with the right, or his intention to rely upon it. The renunciation,
repudiation, abandonment, or surrender of some claim, right,
privilege, or of the opportunity to take advantage of some defect,
irregularity, or wrong. An express or implied relinquishment of a
legal right. . . .
BLACK’S LAW DICTIONARY 1580 (6th ed. 1995).
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Based on the facts in this case, I would affirm the trial court’s order
vacating the judgment for unliquidated damages. The trial court entered
a default on liability against Ballast Nedam Construction, Inc. The trial
court then entered an order setting a trial on unliquidated damages.
Contrary to the Florida Rules of Civil Procedure, the trial court did not
serve the order setting trial on Ballast, which was unrepresented by
counsel at this point in time. Thereafter, the Mournings sought a special
trial date, and, on October 5, 2005, the trial court entered a new order
re-setting trial to the November 7, 2005 docket. The trial court again
failed to serve on Ballast the order setting trial for November 7, 2005.
However, on October 15, 2005, only twenty-three days prior to the
beginning of the trial docket on which the case was set, the Mournings’
counsel served on Ballast a copy of the trial court order setting trial. As
such, even if it were proper for counsel, and not the trial court, to serve
an order setting trial on Ballast, the service would have provided less
than the mandatory thirty-day notice required by Rule 1.440(c). Plus,
the order was sent ten days after entry by the trial court, contrary to the
requirement of Florida Rule of Civil Procedure 1.080(h)(1) that the order
be served at the time it is entered by the trial court. At the start of the
November 7, 2005 trial docket the case was rescheduled for December
12, 2005, for a jury trial on unliquidated damages. Ballast was not
notified of the December 12 trial date. Ballast did not appear on
December 12 for trial, and following the jury verdict a final judgment was
entered against Ballast. Thereafter, Ballast, through counsel, filed a
motion to vacate the damages judgment based on the trial court’s failure
to comply with rules of civil procedure. At a hearing on that motion, the
trial court recognized that it had not complied with Florida Rule of Civil
Procedure 1.440(c) and granted Ballast’s motion to vacate.
The language of the applicable Florida Rules of Civil Procedure is
clear. Florida Rule of Civil Procedure 1.440(c) provides:
Setting for Trial. If the court finds the action ready to be
set for trial, it shall enter an order fixing a date for trial.
Trial shall be set not less than 30 days from the service of
the notice for trial. By giving the same notice the court may
set an action for trial. In actions in which the damages are
not liquidated, the order setting an action for trial shall be
served on parties who are in default in accordance with rule
1.080(a).
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Florida Rule of Civil Procedure 1.080(a) provides:
Service; When Required. Unless the court otherwise orders,
every pleading subsequent to the initial pleading and every
other paper filed in the action, except applications for
witness subpoena, shall be served on each party. No service
need be made on parties against whom a default has been
entered, except that pleadings asserting new or additional
claims against them shall be served in the manner provided
for service of summons.
Finally, Rule 1.080(h)(1) specifically addresses service of orders setting
trial on defaulted parties:
A copy of all orders or judgments shall be transmitted by the
court or under its direction to all parties at the time of entry
of the order or judgment. No service need be made on
parties against whom a default has been entered except
orders setting an action for trial as prescribed in rule
1.440(c) and final judgments that shall be prepared and
served as provided in subdivision (h)(2). The court may
require that orders or judgments be prepared by a party,
may require the party to furnish the court with stamped,
addressed envelopes for service of the order or judgment,
and may require that proposed orders and judgments be
furnished to all parties before entry by the court of the order
or judgment.
A combined reading of these rules reveals that it is the trial court’s,
and not opposing counsel’s, responsibility to serve orders setting trial on
parties, including those in default. Under the plain language of Rule
1.440, the trial court was required to enter an order fixing a date for trial.
This the trial court did. Under the plain language of Rule 1.080(h), the
trial court, and not Mourning, was required to transmit the order setting
trial to Ballast at the time the order was entered. This the trial court did
not do. Yet, the rules make it clear that the trial court must serve, at the
time of entry, the order setting trial on the parties and that the trial shall
not be set less than thirty days from service of the notice of trial.
The various cases considering a trial court’s failure to comply with
this mandatory service requirement lead me to conclude that failure to
comply is a due process violation warranting reversal of a final judgment.
In Lauxmont Farms, Inc. v. Flavin, 514 So. 2d 1133 (Fla. 5th DCA 1987),
after a motion for summary judgment on unliquidated damages in a
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default case was erroneously granted, an order setting non-jury trial on
punitive damages and attorney’s fees was sent by Flavin’s counsel. Id. at
1134. Lauxmont Farms did not appear at trial and a punitive damages
and attorney’s fees judgment was entered against it based on the jury’s
verdict. Id. The Fifth District reversed and held as follows:
Strict compliance with Florida Rule of Civil Procedure 1.440
is required and failure to do so is reversible error. Ramos v.
Menks, 509 So. 2d 1123 (Fla. 1st DCA 1986); Bennett v.
Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA
1984); see also Broussard v. Broussard, 506 So. 2d 463 (Fla.
2d DCA 1987). We have stated before that a party has a due
process entitlement to notice and an opportunity to be heard
on unliquidated damages pursuant to Florida Rule of Civil
Procedure 1.440. Bowman v. Kingsland Development, Inc.,
432 So. 2d at 663. Lauxmont Farms’ fundamental due
process rights were violated by the defective notice of
nonjury trial for both compensatory and punitive damages
as well as attorneys fees and costs.
Accordingly, the
judgments for damages, attorney’s fees and costs are
reversed and remanded for new trial after proper notice
under Florida Rule of Civil Procedure 1.440.
Id. Apart from the erroneous grant of summary judgment regarding
unliquidated damages, the court in Lauxmont held that the trial court’s
failure to comply with the strict requirement of serving an order setting a
trial, even one for punitive damages and attorney’s fees against a
defaulted party, required reversal on due process grounds.
In Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA
1986), the court likewise held that the trial court’s failure to serve an
order setting trial on a party that did not ultimately appear for trial
required the reversal of a final judgment on due process grounds (and in
the interest of promoting uniformity) and concluded that “strict
compliance with rule 1.440 is mandatory.” Id. at 727. As such, it is
clear from cases such as Lauxmont and Bennett that except in cases of
waiver,4 the trial court’s failure to transmit the order setting trial to the
An example of waiver can be found in the lone case which the majority
suggests constitutes an instance in which this Court failed to adhere to the
bright-line trend for construing rules of civil procedure, Nicholson-Kenny Capital
Management, Inc. v. Steinberg, 932 So. 2d 321 (Fla. 4th DCA 2006). In
Nicholson-Kenny, a party filed a “Notice of Conference of Parties & Attorneys” to
address pre-trial issues four days after a non-binding arbitration decision. Id.
4
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parties is reversible error because of the risks to due process, without
engaging in any type of calculus or entertaining the particular
circumstances of a case. See also Brown v. Reynolds, 872 So. 2d 290,
297 (Fla. 2d DCA 2004)(“The rule [1.440] is designed to safeguard the
parties’ right to procedural due process. Noncompliance with the rule
may violate a party’s due process rights. Thus strict compliance with the
rule is mandatory.”)(internal citations omitted).
Moreover, the current trend to construe Florida Rules of Civil
Procedure in a bright-line fashion based on their plain language and
unambiguous meaning supports the conclusion that the clear rules
governing the serving of orders setting trial should likewise be construed
in a bright-line fashion. See Saia Motor Freight Line, Inc. v. Reid, 930 So.
2d 598, 600 (Fla. 2006)(concluding that a Rule 1.525 motion for costs
was untimely despite a reservation of jurisdiction based on the plain
meaning of the rule: “When we adopted rule 1.525, effective January 1,
2001, we established a bright-line time requirement for motions for costs
and attorney fees which the Rules of Civil Procedure had not previously
at 323. The opposing party filed a motion for final judgment alleging that the
party had failed to comply with Florida Rule of Civil Procedure 1.820(h) by not
expressly requesting a trial de novo. Id. This Court affirmed the ensuing entry
of final judgment, writing:
Even though the notice indicating a continued demand to proceed
to trial was not specifically styled a “motion for trial de novo,” we
would conclude that Steinberg, through its conduct, is precluded
from raising the issue of non-compliance with rule 1.820. It did
not object when its attorneys were noticed to attend the pretrial
conference; it worked with Nicholson's attorney to develop the
pretrial statement; and it did not object to setting the trial at the
docket call. All of these events occurred within the time in which
Nicholson could have filed a “motion for trial de novo” had it
known that Steinberg was insisting that it file a document so
styled. Steinberg continued preparing for a trial and never
revealed its argument that the notice of setting the pretrial
conference in accordance with the order setting trial was
insufficient to put it on notice that Nicholson intended to proceed
with a trial.
Id. at 324-325. As such, I conclude that Nicholson-Kenny is not so much a
deviation from the bright-line trend, as it is an instance in which compliance
with a rule was waived by a party’s “gotcha” conduct. Thus, it is clearly
distinguishable from the present case involving a default in which the aggrieved
party took no action inconsistent with enforcement of the rules in question nor
participated in any of the proceedings to the point of misleading the plaintiff.
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contained. Judge Altenbernd correctly made this point stating, in Diaz v.
Bowen, 832 So. 2d 200, 201 (Fla. 2d DCA 2002), that ‘[r]ule 1.525 was
created to establish a bright-line rule to resolve the uncertainty
surrounding the timing of these posttrial motions.’”); Wilson v. Salamon,
923 So. 2d 363, 368 (Fla. 2005)(“However, the language of the rule
[1.420(e)] is clear-if a review of the face of the record does not reflect any
activity in the preceding year, the action shall be dismissed, unless a
party shows good cause why the action should remain pending; however,
if a review of the face of the record reveals activity by ‘filings of pleadings,
order of court, or otherwise,’ an action should not be dismissed. See
Hall, 784 So. 2d at 1090. This construction of the rule establishes a
bright-line test that will ordinarily require only a cursory review of the
record by a trial court. As Justice Wells noted in Hall, there is either
activity on the face of the record or there is not. Id. We find this brightline rule appealing in that it establishes a rule that is easy to apply and
relieves the trial court and litigants of the burden of determining and
guessing as to whether an activity is merely passive or active. It is this
burden which has created the difficulty with which litigants and trial
courts have struggled to determine whether a particular filing or action
will advance the cause to resolution.”); Lamb v. Matetzschk, 906 So. 2d
1037 (Fla. 2005)(applying bright-line rule to particularity and specificity
requirements of Rule 1.442 governing proposals for settlement).
My conclusion that the Florida Supreme Court’s bright-line trend
should be applied to the construction of the rules regarding mandatory
trial court service of orders setting trial is further supported by this
Court’s repeated strict application of rules of civil procedure in a brightline fashion, on no less than seventeen occasions since December 2005.5
In fact, there are only two instances during this time period in which it could
be legitimately contended that this Court failed to follow the bright-line trend.
One of these cases was Nicholson-Kenny, as discussed in Footnote 1, a case
involving a waiver of rule compliance based on “gotcha” conduct that is not a
true deviation from the bright-line trend. The other case was Goldman v.
Campbell, 920 So. 2d 1264 (Fla. 4th DCA 2006), which although recognizing
the bright-line trend, did not apply it to a case involving some unique
circumstances surrounding Rule 1.442 and the law related to proposals for
settlement. In Goldman, the plaintiff failed to cite Florida Statutes section
768.79 in his proposal for settlement as required by Rule 1.442(c)(1) and the
statute, and this Court concluded that such a technical violation of the rule did
not warrant invalidating the proposal where only one statute presently governed
proposals for settlement. Id. at 1266. However, this case, and the technical
violation exception to the bright-line rule which it arguably created, was
recently reversed by the Florida Supreme Court in Campbell v. Goldman, 32 Fla.
L. Weekly S320 (Fla. Jun. 14, 2007). The Supreme Court rejected a distinction
5
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The first case recognizing the bright-line trend for construing rules of
civil procedure was Lynch v. United Distributors, Inc., 915 So. 2d 274 (Fla.
4th DCA 2005). In Lynch, this court reversed an order dismissing a case
for lack of prosecution under Rule 1.420(e), finding that there was
sufficient activity on the face of the record during the relevant time
period (Lynch’s notice of compliance with discovery), and cited Wilson.
Id. at 274. This Court did likewise in the second bright-line case, Frisbie
v. Gardiner, 917 So. 2d 403 (Fla. 4th DCA 2006), involving a motion to
withdraw as counsel and an order granting the motion, again citing
Wilson. Id. at 404. This Court followed suit yet again in the third brightline case, Commercial Union Insurance Co. v. Marine Sales & Services,
Inc., 923 So. 2d 535 (Fla. 4th DCA 2006), involving a civil cover sheet,
again citing Wilson. Id. at 535.
The fourth bright-line case, Graham v. Peter K. Yeskel 1996
Irrevocable Trust, 928 So. 2d 371 (Fla. 4th DCA 2006), was the first to
deal with the bright-line construction of Rule 1.442. In Graham, this
Court affirmed an order denying attorney’s fees based on a proposal for
settlement, finding that the proposal did not apportion the offer between
the co-defendants as required by Rule 1.442(c)(3). Id. at 371. This Court
concluded that the failure to apportion was fatal based on the Florida
Supreme Court’s bright-line interpretation of Rule 1.442 and cited Lamb.
Id. at 372. On rehearing, this Court further opined:
To us a bright line rule means that it applies in all proposal
for settlement cases, without exception. Rule 1.442 applies
to “all proposals for settlement authorized by Florida law…”
Fla. R. Civ. P. 1.442(a). In Lamb and rule 1.442(a), we
believe that the supreme court, like Dr. Seuss’s Horton the
elephant, meant what it said and said what it meant—rule
1.442(c) applies in all cases where proposals for settlement
are authorized by Florida law, without exception for claims
against litigants relating to property they own as tenants by
the entirety.
between the substantive and procedural portions of Rule 1.442, and held that
because the plain language of the rule and statute requiring citing the statute
in a proposal for settlement must be strictly construed (in keeping with the
bright-line trend established by cases like Willis Shaw and Lamb), the proposal
for settlement at issue was invalid. This development further supports my
position that the bright-line trend is thriving and should be equally applied to
the construction of the rules at issue in this case.
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Id. at 373.
The fifth bright-line case, Hunnewell v. Palm Beach County, 925 So.
2d 468 (Fla. 4th DCA 2006), shifted back to yet another consideration of
Rule 1.420(e).
In Hunnewell, this Court again reversed an order
dismissing a case for lack of prosecution, finding sufficient activity on the
face of the record during the relevant time period (an order denying the
County’s motion to dismiss), and noted that following Wilson, the court
no longer needed to determine whether the record activity was active or
passive. Id. at 470. This Court further noted that Wilson evidenced that
“our supreme court sensed the need for a bright-line test to balance the
competing need of litigants to have claims heard on the merits with the
court’s need to dispose of cases that are not being prosecuted.” Id.
In the sixth bright-line case, Richards v. Sheriff of Palm Beach County,
925 So. 2d 1166 (Fla. 4th DCA 2006), this Court continued its bright-line
application of Rule 1.420(e). In Richards, this Court yet again reversed
an order dismissing a case for lack of prosecution, finding sufficient
activity on the face of the record during the relevant time period (an order
granting Richards’s attorney’s motion to withdraw), and cited Wilson. Id.
at 1167-1168. The seventh bright-line case, Carnes v. Fender, 936 So.
2d 11 (Fla. 4th DCA 2006), again considered rule 1.442. In Carnes, this
Court denied a motion for appellate attorney’s fees based on proposals
for settlement, finding that they lacked the specificity required by Rule
1.442(c)(2)(D), and cited to a predecessor case to Lamb, Swartsel v. Publix
Super Markets, Inc., 882 So. 2d 449 (Fla. 4th DCA 2004). Id. at 15.
The eighth bright-line case, Walker v. McDonough, 929 So. 2d 1127
(Fla. 4th DCA 2006), again dealt with Rule 1.420(e). In Walker, this
Court reversed an order dismissing a case for lack of prosecution, finding
sufficient activity on the face of the record during the relevant time
period (two notices of change of address and a notice of absence from the
jurisdiction), and cited Wilson. Id. at 1128. The ninth bright-line case,
Rivera v. Publix Super Markets, Inc., 929 So. 2d 1184 (Fla. 4th DCA
2006), again involved Rule 1.442. This Court reversed an order awarding
attorney’s fees based on an offer of judgment, finding that the offer failed
to state its non-monetary terms with the particularity required by Rule
1.442(c)(2)(C)-(D), and cited Swartsel. Id. at 1184.
The tenth bright-line case is Stowe v. Universal Property & Casualty
Insurance Co., 937 So. 2d 156 (Fla. 4th DCA 2006), which is the first
case to apply the bright-line trend to a rule outside the triad discussed
by the Supreme Court in Saia, Lamb, and Wilson, Rule 1.820(h). In
Stowe, an insurance contract dispute was referred to non-binding
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arbitration under Florida Statutes section 44.103. Id. at 157. Following
the arbitration, but before a decision was issued, Stowe filed a notice for
trial. Id. at 157-158. The arbitrator then rendered a decision, but Stowe
did not file another notice for trial requesting trial de novo within the
twenty-day window following the decision, so Universal moved for entry
of judgment based on the arbitrator’s decision in accordance with Rule
1.820(h). Id. at 158. This Court affirmed the resulting judgment, finding
that a motion for trial does not comply with Rule 1.820(h) if it is filed
after an arbitration hearing but before the rendition of the arbitrator’s
decision. Id. at 157. This conclusion was based on the plain language of
Rule 1.820(h) in keeping with the bright-line trend for interpreting rules
of civil procedure, as explained by this Court:
When it comes to interpreting rules of civil procedure, often
the job of an intermediate appellate court is to read the tea
leaves of Florida supreme court decisions. The recent trend
in these decisions is to construe rules of civil procedure
according to their plain meaning. Some high court opinions
strictly construe provisions to create rules that are clear-cut
and easy to apply. Thus, Lamb v. Matetzschk, 906 So. 2d
1037 (Fla. 2005), adopted a bright line rule concerning the
form of a rule 1.442 proposal for settlement. Recently, in
Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598 (Fla.
2006), the supreme court described rule 1.525 as
establishing “a bright-line time requirement for motions for
costs and attorney fees.” Wilson v. Salamon, 923 So. 2d 363
(Fla. 2005) interpreted rule 1.420(e) by its “plain meaning” to
“further the purpose of decreasing litigation over the purpose
of the rule and fostering the smooth administration of the
trial court’s docket.”
Id. at 158. Additionally, in following the bright-line trend, this Court
noted the slippery-slope-like dangers of exceptions to bright-line rules,
such as that suggested by Stowe’s circumstances:
The position that Stowe urges us to adopt does violence to
the concept of a bright-line rule. If a motion for trial after an
arbitration hearing but before a decision complies with the
rule, what about a motion after the arbitration is set, but
before the hearing, or a motion filed before an order setting
arbitration, but after arbitration has been put into play by
the court or the parties?
Id. at 158-159.
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The eleventh bright-line rule case is Rubio v. Cuba, 933 So. 2d 1292
(Fla. 4th DCA 2006), once again confronting Rule 1.420(e). In Rubio, this
Court reversed an order dismissing a case for lack of prosecution, finding
sufficient activity on the face of the record during the relevant time
period (Rubio’s notice of deposition), and cited Wilson. Id. at 1292-1293.
This Court did likewise in the twelfth bright-line case, Johnson v.
Maroone Ford LLC, 944 So. 2d 1059 (Fla. 4th DCA 2006), involving a
request for production, again citing Wilson. Id. at 1061. The thirteenth
bright-line case, Joseph v. Chanin, 938 So. 2d 619 (Fla. 4th DCA 2006),
was the first to address the bright-line construction of Rule 1.525. In
Joseph, this Court accepted Chanin’s concession of error admitting that
her post-judgment motion for costs was untimely served under Rule
1.525 and cited Saia. Id. at 619-620.
The
fourteenth
bright-line
case,
Papouras
v.
Bellsouth
Telecommunications, Inc., 940 So. 2d 479 (Fla. 4th DCA 2006), once
again returned to consideration of Rule 1.442. In Papouras, this Court
affirmed an order denying attorney’s fees based on a proposal for
settlement, because the proposal lacked the specificity required by Rule
1.442. Id. at 479. The specificity that was lacking was the details
(whether a summary or copy) of the full release to be executed based on
the terms of the proposal. Id. at 480. In reaching this conclusion, this
Court recognized that the Florida Supreme Court had adopted a brightline interpretation of Rule 1.442 and cited to a predecessor case to Lamb,
State Farm Mutual Automobile Insurance Co. v. Nichols, 932 So. 2d 1067
(Fla. 2006).
The fifteenth bright-line case, State Farm Mutual Automobile Insurance
Co. v. Stylianoudakis, 946 So. 2d 647 (Fla. 4th DCA 2007), involved yet
another application of Rule 1.525. In Stylianoudakis, this Court reversed
a costs judgment filed beyond the thirty-day window provided by Rule
1.525 due to a reservation of jurisdiction based on Saia. Id. at 649. The
sixteenth bright-line case, ZC Insurance Co. v. Brooks, 32 Fla. L Weekly
D829 (Fla. 4th DCA Mar. 28 2007), also addressed Rule 1.525. In
Brooks, this Court again reversed a fees and costs judgment for failure to
timely serve a motion under Rule 1.525 based on a reservation of
jurisdiction, relying on Saia. Id.
The seventeenth (and final at the time of this writing) bright-line case,
Metcalfe v. Lee, 952 So. 2d 624 (Fla. 4th DCA 2007), is the second case
to apply the bright-line trend to a rule outside the triad discussed by the
Supreme Court in Saia, Lamb, and Wilson, Rule 1.260(a). In Metcalfe, a
medical malpractice suit was dismissed for failure to comply with Rule
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1.260 and substitute a personal representative as the plaintiff in the
lawsuit following Metcalfe’s death. Id. at 626. On June 30, 2005,
counsel filed a motion for substitution indicating that Metcalfe’s estate
was being probated, that the estate was seeking the appointment of a
personal representative, and that counsel was requesting that the
personal representative be substituted into the malpractice suit as the
plaintiff. Id. On August 10, 2005, a defendant filed a motion to dismiss
for failure to substitute parties, asserting that a suggestion of death had
been filed on May 9, 2005 so that the ninety-day period for substitution
under Rule 1.260(a)(1) had expired on August 8 without the occurrence
of substitution. Id. at 626-627. Thereafter, the trial court denied the
motion for substitution and granted the motion to dismiss for failure to
substitute based on the asserted untimeliness. Id. at 627. Recognizing
that rules of civil procedure are to be construed based on their plain and
ordinary meaning, and citing the triad of Florida Supreme Court brightline cases, this Court reversed the dismissal, holding that dismissal was
inappropriate “in light of the rule’s plain language as to when a trial
court can dismiss an action—only when there is a failure to make a
motion for substitution” because a motion for substitution had been
timely filed within the ninety-day window of Rule 1.260(a) (regardless of
whether substitution had yet occurred) by a party with standing under
the plain language of the rule. Id. at 629-630.
Against this backdrop of bright-line cases regarding the interpretation
of rules of civil procedure and clear cases regarding the per se offense to
due process resulting from noncompliance with Rules 1.440(c) and
1.080(h)(1), it seems to me that these rules must be interpreted based on
their plain meaning. Thus, the rules require that the trial court in all
cases, without particularized exceptions, must transmit to the parties, at
the time of entry, the order setting a case for trial and that the trial shall
be set not less than thirty days from the service of the order. To
conclude otherwise would defeat the due process protections inherent in
the rules and would stray from the Florida Supreme Court’s bright-line
trend for applying rules of civil procedure.
Perhaps a bright-line construction of Rules 1.440(c) and 1.080(h)(1)
may appear to elevate form over substance, but I believe it more
importantly promotes the efficient administration of justice through
uniformity and certainty in the practice of law and in the application of
rules designed to achieve these very ends. See Fla. R. Civ. P. 1.010
(“These rules shall be construed to secure the just, speedy, and
inexpensive determination of every action.”). It allows counsel to know
what type of notice to expect without speculation, it eliminates
subjectivity in the application and interpretation of the rules, and it
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promotes due process in the sense that all parties, regardless of their
circumstances, will receive the same notice, at the same time, from the
same impartial trial court.
If there are legitimate concerns about whether the mandatory
requirement of service by the trial court promotes the interests of due
process or rather elevates form over substance, those concerns are best
resolved by the Florida Supreme Court which approved the present rules.
See BDO Seidman, LLP v. British Car Auctions, Inc., 802 So. 2d 366, 370
(Fla. 4th DCA 2001)(“[Article V, Section 2(a) of the Florida Constitution]
provides that the ‘supreme court shall adopt rules for the practice and
procedure in all courts.’ That provision endows the supreme court ‘with
the exclusive authority to adopt rules for practice and procedure in the
courts of this State.’”)(Gross, J., concurring specially). The present rules,
as approved by the court, simply do not allow for due process
distinctions based on the circumstances of individual cases.
For these reasons expressed, I conclude that based on the clear facts
of this case and the plain language of the applicable rules of civil
procedure, the trial court did not err in granting Ballast’s motion to
vacate the damages judgment. I would affirm
*
*
*
Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Kenneth D. Stern, Judge; L.T. Case
No. 502004CA010866XXXXAE.
Roy W. Jordan, Jr. of Roy W. Jordan, Jr., P.A., West Palm Beach, for
appellants.
Sylvia H. Walbolt and Laura W. Paquin of Carlton Fields, P.A., Tampa,
and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for
appellee.
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