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Docket Number

No. 79-1056/T2-34.

Attorney(S)

Gene H. Auvil, of McGee Auvil, P.A., Brooksville, for appellant. Joseph F. Johnston, Jr., Brooksville, for appellee.

Judges

SHARP, Judge.

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Smart Summary

Case Summary: Robert M. Gibson et ux. v. Sam D. Buice et al.

Factual and Procedural Background

Plaintiffs (the Buices) sought to establish a prescriptive easement over the defendants' lands. After trial the trial court announced a ruling in favor of the plaintiffs. Plaintiffs' counsel submitted a proposed judgment to the court and to defendants' counsel; defendants' counsel wrote a letter to the court objecting to specific problems with the judgment. The court signed the final judgment on February 22, 1979, and it was filed with the clerk on February 23, 1979, but the court failed to mail copies of the judgment to either attorney and did not direct anyone else to do so. The clerk's notation reflected that no copies were furnished to him.

Upon learning of the entry of the final judgment on March 30, 1979, defendants' counsel filed a motion for relief from judgment under Rule 1.540(b), alleging "mistake or inadvertence" due to the court's failure to mail copies of the judgment as required by Rule 1.080(h). The motion included an affidavit from defendants' counsel stating he had not received copies or notice of the judgment prior to March 30. Plaintiffs' counsel filed a counter-affidavit asserting he had told defendants' counsel about the entry sometime in early March during a passing encounter in courthouse corridors. The trial court denied the Rule 1.540(b) motion, and the defendants appealed.

This opinion was issued by the District Court of Appeal of Florida, Fifth District, on March 26, 1980. The written opinion is authored by Judge Sharp, with Judges Orfinger and Cobb concurring.

Legal Issues Presented

Whether the trial court abused its discretion in denying the defendants' motion for relief from final judgment under Rule 1.540(b) of the Florida Rules of Civil Procedure.
Whether the trial court's failure to comply with Rule 1.080(h)(1) (transmission of a copy of the judgment to all parties at the time of entry) constitutes "mistake, inadvertence, surprise or excusable neglect" warranting relief under Rule 1.540(b) (or, in some circumstances, Rule 1.540(a)).

Arguments of the Parties

Appellant (Defendants')

Moved for relief under Rule 1.540(b) on the ground of "mistake or inadvertence" because the trial court failed to mail copies of the final judgment to counsel as required by Rule 1.080(h).
Filed an affidavit asserting he had not received copies of the judgment nor any notice that the judgment had been entered prior to March 30, 1979.

Appellee (Plaintiffs')

Filed a counter-affidavit stating that plaintiffs' counsel informed defendants' counsel about the entry of the judgment in early March during a passing conversation in the courthouse corridors.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Schwab Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978)	That it is generally the duty of the trial court to determine whether the facts in each case constitute excusable neglect.	The court relied on this principle to frame the standard that the trial court should determine whether excusable neglect existed here.
Smith v. Garst, 289 So.2d 774 (Fla. 2d DCA 1974)	Cited as an example of cases addressing relief where lack of notice of rendition of final judgment leads to failure to take timely appeal (context for Rule 1.540(b) relief).	Referenced to show that courts have discretion to grant relief under Rule 1.540(b) where lack of notice of judgment caused failure to appeal.
Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971)	Same context as Smith: discretionary relief for lack of notice leading to untimely appeal.	Grouped with Smith as authority supporting the availability of relief when lack of notice prevents timely appeal.
Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla. 1979)	Cited in connection with the availability of relief under Rule 1.540(a) (as an alternative in some circumstances).	Identified as authority for the proposition that relief may also be available under Rule 1.540(a) in appropriate cases.
Rogers v. First National Bank at Winter Park, 232 So.2d 377, 378 (Fla. 1970)	Principle that procedural rules must be administered in a manner conducive to the ends of justice.	Quoted to support the court's view that Rule 1.540(b) should be liberally applied here given the absence of required formal notice.
Kash N' Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla. 2d DCA 1969)	Addressed in contrast to the present case because the opposing counsel's secretary there alleged mailing of conformed copies.	Distinguished: in Kash N' Karry the secretary alleged mailing and the case predates Rule 1.080(h)(1); thus it did not dictate the outcome here.
Bennett v. Halper, 248 So.2d 522 (Fla. 3d DCA 1971)	Also distinguished because the judge's secretary there alleged mailing of conformed copies.	Distinguished from the instant case for the same reasons as Kash N' Karry and because it predates Rule 1.080(h)(1).

Court's Reasoning and Analysis

The court began by framing the controlling procedural rule: Rule 1.540(b) allows a court, on motion, to relieve a party from final judgment for "mistake, inadvertence, surprise or excusable neglect." The panel recognized that trial courts have the duty to determine whether the facts establish excusable neglect (citing Schwab Co., Inc. v. Breezy Bay, Inc.).

The court focused on the trial court's failure to follow Rule 1.080(h)(1), which requires that "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." The opinion states that no copies were transmitted to either party in this case, and the clerk's entry corroborated that no copies were furnished.

Given that omission, the appellate court concluded Rule 1.540(b) should be liberally applied. The opinion invoked the general principle articulated in Rogers v. First National Bank at Winter Park that procedural rules must be administered in a manner conducive to the ends of justice, supporting a liberal application when formal notice required by rule is not provided.

The court distinguished cases in which relief was denied (Kash N' Karry and Bennett) on the grounds that, in those cases, secretaries alleged they had mailed conformed copies and those cases preceded adoption of Rule 1.080(h)(1). Thus they were not controlling here.

The court addressed the factual dispute over whether defendants' counsel had notice by noting the only evidence tending to show notice was plaintiffs' counsel's assertion of a passing conversation in the courthouse corridors. The court observed it was conceivable both affidavits were true (plaintiffs' counsel said something and defendants' counsel either did not hear or misunderstood), and held that such informal conversations do not substitute for formal notice required by Rule 1.080(h)(1).

On that basis — the court's failure to transmit the judgment as required and the absence of formal notice to defendants' counsel — the appellate court concluded the trial court abused its discretion in denying relief under Rule 1.540(b).

Holding and Implications

HOLDING: The appellate court held that the trial court abused its discretion in denying the defendants' motion for relief under Rule 1.540(b), reversed the trial court's order, vacated that order, and remanded for entry of an order as authorized by Rule 1.540(b).

Direct effect on the parties: The reversal and remand require the trial court to enter an order under Rule 1.540(b) that will afford the appellant (defendants) an avenue for a direct appeal from the underlying judgment.

Broader implications: The opinion emphasizes strict compliance with Rule 1.080(h)(1)'s formal notice requirement and endorses liberal application of Rule 1.540(b) where the court fails to transmit copies of judgments to the parties. The opinion does not announce a novel rule of law beyond applying existing rules and precedent to the specific facts; it instead enforces established principles governing notice and excusable neglect.

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ROBERT M. GIBSON ET UX., APPELLANT, v. SAM D. BUICE ET AL., APPELLEE.

SHARP, Judge.

The question posed in this appeal is whether the trial court abused its discretion in denying the appellant's motion for relief, pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure. We conclude that under the circumstances in this case an abuse of discretion occurred, and that the trial court should have granted the appellant's motion.

The Buices, plaintiffs in the trial court, sought to establish a prescriptive easement over the defendants' lands. After a trial of the matter, the court announced its ruling in favor of the plaintiffs. Plaintiffs' counsel submitted a proposed judgment to the court and to defendants' counsel. The defendants' counsel wrote a letter to the court objecting to specific problems with the judgment. The court signed the final judgment on February 22, 1979, and filed it with the clerk's office on February 23, 1979. However, it failed to mail copies of the judgment to either attorney, nor did it direct anyone else to do so. The judgment contains a notation by the clerk dated February 23, 1979, that no copies were furnished to him.

Upon learning of the entry of the final judgment on March 30, 1979, the defendants' attorney filed a motion for relief from judgment pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure on the grounds that "mistake or inadvertence" had occurred due to the court's failure to mail copies of the judgment to the parties. Florida Rules of Civil Procedure 1.080(h). In support of the requested relief the defendants' counsel attached to the motion an affidavit alleging he had not received copies of the judgment, nor had he received notice that the judgment was entered from any source or person prior to March 30, 1979. Counsel for the plaintiffs filed a counter-affidavit stating that he told defendants' attorney about the entry of the judgment sometime in early March, while they were passing in the courthouse corridors, attending to other matters. The lower court denied the motion, and the defendants brought this appeal.

Rule 1.540(b) provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; . .

Generally, it is the duty of the trial court to determine whether the facts in each case constitute excusable neglect. Schwab Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978). Where the excusable neglect relied upon is lack of notice of the rendition of a final judgment and ensuing failure to take a timely appeal, trial courts have discretion to grant relief pursuant to Rule 1.540(b), or pursuant to Rule 1.540(a).

Smith v. Garst, 289 So.2d 774 (Fla. 2d DCA 1974) and Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971).

Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla. 1979).

In this case the failure to send the defendants' counsel a copy of the judgment was caused by the trial court's disregard of Rule 1.080(h)(1) which provides:

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.

Neither plaintiff nor defendant received a copy. Therefore Rule 1.540(b) should be liberally applied here. "While our procedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice." Rogers v. First National Bank at Winter Park, 232 So.2d 377, 378 (Fla. 1970).

Kash N' Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla. 2d DCA 1969) and Bennett v. Halper, 248 So.2d 522 (Fla. 3d DCA 1971) are distinguishable from this case because the secretary of the judge in Bennett and the secretary to the opposing counsel in Kash N' Karry alleged they mailed conformed copies of the judgments to the party seeking to take an appeal belatedly. Further, both of those cases predate Rule 1.080(h)(1).

Here, the only allegation which tended to show notice by defendants' counsel of the "rendition" of the final judgment was a passing conversation in the courthouse when the attorneys were attending to other matters. It is not inconceivable that both affidavits were true. The plaintiffs' attorney told the defendants' attorney about the judgment being entered, but the defendants' attorney did not hear him, or misunderstood what he said. Such informal conversations are no substitute for the formal notice requirement imposed by Rule 1.080(h)(1).

For the reasons stated in this opinion, we reverse and vacate the trial court's order, and remand this cause to the trial court for entry of an order as authorized by Rule 1.540(b), which will provide the appellant with an avenue for a direct appeal.

REVERSED and REMANDED.

ORFINGER and COBB, JJ., concur.

GIBSON v. BUICE