Parrot Cove Marina v. Duncan Seawall Dock

978 So. 2d 811, 2008 Fla. App. LEXIS 2224, 2008 WL 441948
CourtDistrict Court of Appeal of Florida
DecidedFebruary 20, 2008
Docket2D06-3720, 2D06-4582
StatusPublished
Cited by3 cases

This text of 978 So. 2d 811 (Parrot Cove Marina v. Duncan Seawall Dock) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parrot Cove Marina v. Duncan Seawall Dock, 978 So. 2d 811, 2008 Fla. App. LEXIS 2224, 2008 WL 441948 (Fla. Ct. App. 2008).

Opinion

978 So.2d 811 (2008)

PARROT COVE MARINA, LLC, Appellant,
v.
DUNCAN SEAWALL DOCK & BOATLIFT, INC., Appellee.

Nos. 2D06-3720, 2D06-4582.

District Court of Appeal of Florida, Second District.

February 20, 2008.

*812 Charles F. Johnson, Mary Fabre LeVine, and Fred E. Moore of Blalock, Walters, Held & Johnson, P.A., Bradenton, for Appellant.

Douglas R. Bald of Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., Sarasota, for Appellee.

VILLANTI, Judge.

Parrot Cove Marina, LLC, appeals two orders of the trial court: a final judgment of foreclosure and an award of attorney's fees and costs in favor of Duncan Seawall Dock & Boatlift, Inc. For the reasons explained below, we affirm the final judgment of foreclosure but reverse the award of attorney's fees and costs.

Parrot Cove and Duncan entered into an agreement under which Duncan would excavate silt material from property owned by Parrot Cove. It appears that a dispute arose between the parties after Duncan began performing the work, and Parrot Cove did not pay part of the contract price. On May 4, 2005, Duncan filed a lawsuit against Parrot Cove for breach of contract and foreclosure of a lien on the property. During most of the litigation, Parrot Cove was represented by the Mackey Law Group, P.A. On January 17, 2006, following a case management conference, the trial court issued an "Order Scheduling Case for Non-Jury Trial," which included the following language pertinent to this appeal:

1. Trial Date. This Cause is hereby set for non-jury trial during the one-week trial period beginning JUNE 19, 2006. All counsel and pro se parties will be ready for trial at 8:30 a.m. on the first day of said trial period and will remain on standby status for the entire trial term until further notice by the court. Tentative and final trial dockets will be posted on our website, www.12 circuit.state.fl.us as soon as practicable. Pretrial will be scheduled only upon request.

A copy of the order was mailed to Parrot Cove's counsel, who had been present at *813 the hearing. Thereafter, neither side requested a pretrial conference.

On March 28, 2006, Parrot Cove's counsel served a motion to withdraw as counsel in the case. A copy of the motion to withdraw was mailed and also faxed to Parrot Cove. On May 18, 2006, following a hearing,[1] the trial court entered an order granting the Mackey Law Group's motion to withdraw as counsel for Parrot Cove. The trial court's order specifically stated that Parrot Cove had "thirty (30) days from the date of this order to obtain new counsel" and contained no reference to any changes in the pending trial date. A copy of the order granting the motion to withdraw was mailed to Parrot Cove.

As noted above, the trial court's scheduling order had already set the case for trial the week of June 19, 2006. We also note that a corporation must be represented by an attorney to defend or prosecute a lawsuit. Nicholson Supply Co. v. First Fed. Sav. & Loan Ass'n of Hardee County, 184 So.2d 438, 440-42 (Fla. 2d DCA 1966). Based on the trial court's order, Parrot Cove was required to obtain new counsel by June 17, 2006. Because June 17 was a Saturday, Parrot Cove had to obtain new counsel by the next business day — June 19, 2006 — which, coincidentally, was the date when the one-week trial calendar began. The record contains no evidence that Parrot Cove retained new counsel on or before June 19, 2006. Parrot Cove did not appear for trial at any time during the week of June 19, nor did it make any effort to ascertain the status of the trial, despite the fact that the order scheduling trial provided a website through which Parrot Cove could easily confirm tentative and final trial dockets.[2] Furthermore, the record does not reflect any effort on Parrot Cove's part to alert the trial court of any difficulty obtaining counsel. On appeal, Parrot Cove could not point to anything objective in the record as to why it failed to abide by the trial court's order to obtain new counsel within thirty days of the trial court's order.

On June 22, 2006, the trial court called the case for nonjury trial; Parrot Cove did not attend the trial. The trial proceeded that morning, and that same day the court entered a final judgment for construction lien foreclosure in favor of Duncan. On June 23, 2006, Parrot Cove's agent Robert Gertz, who is not a lawyer, sent a hand-written letter to the court alleging that Parrot Cove had not received notice of the trial date until the afternoon of June 22, 2006, when it received by mail a letter[3] dated June 19, 2006, from the trial judge's judicial assistant stating that the case would be called for trial on June 22, 2006. It is evident from this letter that Parrot Cove still had not retained new counsel as of June 23, 2006. On June 28, 2006, Parrot Cove's new counsel made an appearance, moving for rehearing and relief from final judgment. The trial court summarily denied Parrot Cove's motion. Parrot Cove appeals the trial court's final judgment of foreclosure, making two arguments.

First, Parrot Cove argues that it did not have sufficient notice of the trial because its counsel withdrew from representation. In support of its motion for rehearing and to set aside the final judgment, *814 Parrot Cove filed with the trial court Mr. Gertz's affidavit which stated:

Parrot Cove's prior counsel withdrew from this case in May 2006. At this time, prior counsel discussed this withdrawal with Affiant but never discussed the approaching trial date or any steps [Parrot Cove] would need to take with regard to it with Affiant or, to the best of Affiant's knowledge, with any other agent or representative of . . . Parrot Cove.

(Emphasis added.) Thus the affidavit did not actually assert that Parrot Cove's attorney never informed it of the trial date, only that counsel did not discuss the trial date with Parrot Cove when counsel withdrew from representation. Parrot Cove's argument would in effect require a trial court to readdress, reissue, or renotice any pending trial deadlines every time a party changes counsel during the pendency of a case. This burden-shifting proposal is untenable. Regardless, it is well established that "as agent of the client, any notice by or to the attorney in the proceeding is notice to the client." King-Coleman v. Geathers, 841 So.2d 593, 595 (Fla. 4th DCA 2003).

In all matters concerning the prosecution or defense of any proceeding in the court, the attorney of record shall be the agent of the client, and any notice by or to the attorney or act by the attorney in the proceeding shall be accepted as the act of or notice to the client.

Fla. R. Jud. Admin. 2.505(h). Although Parrot Cove argues that it did not receive notice of the trial date, it is clear from the record that on January 17, 2006 — months before withdrawing as counsel in the case — Parrot Cove's counsel attended a case management conference related to the case, and the trial court mailed to Parrot Cove's counsel a copy of the order scheduling the case for trial the week of June 19, 2006. Moreover, the trial court's order granting counsel's motion to withdraw directed Parrot Cove to obtain new counsel within thirty days. It is clear from the record that Parrot Cove failed to abide by the trial court's order. Had Parrot Cove retained counsel within the requisite period of time, its new counsel would also have become aware of the upcoming trial, and Parrot Cove would have been represented at trial on June 22, 2006.

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Bluebook (online)
978 So. 2d 811, 2008 Fla. App. LEXIS 2224, 2008 WL 441948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parrot-cove-marina-v-duncan-seawall-dock-fladistctapp-2008.