Opinion
No. 79-2116.
July 1, 1981.
Appeal from the Circuit Court for Broward County, John G. Ferris, J.
Samuel L. Heller, Law Offices of Samuel L. Heller, P.A., Fort Lauderdale, for appellants.
Bruce A. Weihe, of Houston, Faircloth, Cooper, Easthope Kelley, Fort Lauderdale, for appellee Barnett Bank.
This cause is affirmed.
The neglect which has occasioned the entry of a summary judgment came about either by the gross negligence of the losing parties' attorney or the losing parties themselves, or both. If the first or last of these three possibilities are the correct ones, then the remedy, if any, is against the attorney. Even after entry of the final judgment no effort to set it aside was made for more than seven months. Prior cases out of this court have concluded that neglect by attorneys and failure of litigants to keep abreast of litigation do not normally constitute excusable neglect. Kar Kare Owners Group of Florida v. Chason, 356 So.2d 851 (Fla. 4th DCA 1978) and Westinghouse Credit Corporation v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978).
We do not refer to counsel for appellant on appeal. Another attorney handled this case at the trial level.
As we said in Kar Kare,
Simple prudence would dictate that when one is being sued on a serious matter, such as this . . . one would positively notify his attorneys as to his exact whereabouts and not depend on the vagaries of the re-routing process of the U.S. Mails. At least, when he heard nothing for several months he should have enquired. ( Id. at 854.)
AFFIRMED.
HERSEY, J., concurs specially with opinion.
ANSTEAD, J., dissents with opinion.
The record discloses that appellants became aware of the withdrawal of their attorney in May of 1979. Their motion to vacate the default judgment was not filed until July 27, 1979. "Further delay in excess of the time reasonably necessary to prepare and file a notice to vacate should prove fatal, absent exceptional circumstances." Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978). Whether or not appellants' inaction prior to entry of the default judgment resulted from excusable neglect their subsequent inaction is not legally excusable. Accordingly I concur in affirming the summary final judgment.
On the present state of the record it is uncontradicted that the appellants' attorney withdrew from this cause without notice to appellants and that the cause then proceeded to final disposition without any notice to the appellants. As soon as the appellants learned of the entry of final judgment they moved to set it aside. As noted above, these facts are not in dispute.
Rule 2.060(i) of the Rules of Judicial Administration provides:
(i) Withdrawal of Attorney. An attorney shall not be permitted to withdraw from an action unless the withdrawal is approved by the court. The attorney may file a motion for that purpose stating the reasons for withdrawal and the client's address. A copy of the motion shall be served on the client and adverse parties.
The motion to withdraw contained no certification that a copy had been served upon appellants as required by Rule 2.060(i). In fact, no notice was given to the appellants, who are residents of Pennsylvania, even though their address was in the court file and set out in the original summons and return.
The motion to withdraw specifically alleged the appellants' absence from the area as the reason the attorneys sought to withdraw. Notwithstanding the above, the order authorizing withdrawal reflected that a copy thereof was being sent to appellants at an erroneous local address in Fort Lauderdale. The source of the erroneous address is not contained in the record. All further notices to appellants were sent to the erroneous address notwithstanding the fact that appellants' correct address was clearly set out in the court file.
If an attorney withdraws, and no other attorney is substituted in his place, a party is at least entitled to continuing notice of the proceedings. In this case, since the record reflects that the appellants' correct address was in the court file I believe they were entitled to notice at that address.
I agree with the majority that the attorney in question may be subject to sanctions, and perhaps even legal action, if indeed the appellants never received notice of the withdrawal as the record presently reflects. However, I do not believe the attorneys' negligence should prevent the appellants from being relieved of the effects of a final judgment entered on the erroneous assumption that appellants were receiving notice of the ongoing proceedings when in fact notice was being sent to them at an incorrect address despite the fact the court file contained their correct address.