Singh v. TolzSingh v. Tolz
Jeffrey P. Swayman of Kaplan & Jaffe, P.A., Hollywood, for appellee.
GLICKSTEIN, Judge.
This is a timely appeal from an order which dеnied appellant‘s motion to alter judgment filed pursuant to
In recognition that the facts of each case are of singular importance in determining whether or not relief under
On July 18, 1978 appellee moved to dismiss the complaint upon the ground that the parties’ purchase agreement attached to the complaint expressly recited that the property bеing conveyed was “less or 5484/444 for rd.” which appellee translated as being the book and page number of the Official Records of Broward County where the deed to DOT had been recorded. On September 15, 1978 the trial court dismissed the complaint and gave appellant twenty days to amend. A сopy of the order was furnished to the employing attorney. For health reasons this attorney took a lengthy vacation from September 29 until November 7.
By late November 1978 the associate‘s employment had terminated, аnd the employing attorney, who was now back in the office, had assigned the present case to a new associate. The latter served a motion to amend complaint and a second amended complaint on November 24th and 28th, respectively. This second amended complaint alleged that appellant was a native of India, had been in the United States at the time of negotiations for only two months, spoke and undеrstood little English, had no lawyer during the negotiations, and was told by appellee that he would be purchasing that which he saw. It further alleged that apрellee‘s warranty deed to appellant dated July 20, 1976 included all of the 1645 square feet which appellee had conveyed to the Statе of Florida in 1973 and claimed compensatory and punitive damages. These pleadings were not filed until December 5, 1978.
Also on December 5, the trial court entered a final judgment of dismissal against appellant “effective October 5, 1978, without leave to make further amendments thereto,” based on the running of the twenty days without amendment following its September 15 order of dismissal of appellant‘s original complaint. On the following day, the new assоciate served a motion to alter judgment. This motion requested a rehearing to vacate, in effect, the December 5 order and to cоnsider the second amended complaint on its merits. The motion further alleged the neglect of the original associate, the illness which precipitated the absence of the employing attorney and the present total dependence of appellant upon counsel because of his lack of familiarity with the language. The trial court denied the motion on February 6, 1979 and this appeal followed therefrom.
Our rolе in reviewing an order entered upon motion filed pursuant to
... While our procedural rules provide for an orderly and expeditious administratiоn of justice, we must take care to administer them in a manner conducive to the ends of justice.
Principles arise out of factual situations, and thе facts in Rogers, supra, compelled relief. In that case two attorneys dissolved their partnership and the file stayed with the office of attorney who had nоt been handling the matter. We assume that a motion directed to the failure of attorneys to file an amended complaint was served upon thе attorney who left the firm but not upon the attorney who retained the file. Under those facts, the supreme court ordered the vacation of dismissal.
That situation is not present in the case sub judice as appellee was in complete compliance with the procedural rules. In this сase an attorney (namely, the original associate) was in custody of the file, was assumingly aware of the due date for filing an amended pleаding, and apparently ignored that date. Moreover, when the passage of time was seemingly called to his attention by his opponent‘s motion to dismiss, he consciously disregarded the trial court‘s order to file an amended complaint and instead filed the same pleading which had been previously dismissed, save and except the attached exhibit.
We have given serious consideration to the health-оccasioned absence of the employing attorney and to his diligence in attempting to remedy the harm that has befallen his client. Nevertheless, we must conclude that the absence or lack of knowledge on the part of a supervising attorney is not relevant beyond the door of his office. Otherwise, a Pandora‘s Box would be opened to justify the conduct of the supervised, establishing two classes of attorneys. Such result is contrary to the basic concept of the individual responsibility of an attorney who is performing services for his client.
Finally, we are also not oblivious to the following principle we stated in Enstrom v. Dixon, 354 So. 2d 1251 (Fla. 4th DCA 1978):
It is the policy in this State to freely allow amendments to pleadings in order that causes may be tried on their merits and justice may be achieved. In exercising the discretion inherent in the trial court to allow or disallow amendments, all doubts should be resolved in fаvor of the former unless the privilege be abused... .
That principle, however, is not applicable in a case of conscious disregard of a court‘s order.
Focusing on the conduct of the attorney responsible for this case, we cannot say that the trial court abused its discretion in concluding that appellant was not entitled to relief for mistake, inadvertence, surprise, excusable neglect or any other reason permitted by
AFFIRMED.
ANSTEAD and HERSEY, JJ., concur.