MARTIN L. GLASSMAN, APPELLANT,
v.
DEAUVILLE ENTERPRISES, INC., A FLORIDA CORPORATION, APPELLEE
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In this equity case, the Florida District Court of Appeal reversed the trial court's denial of defendant's motion for a decree on bill and answer (essentially a judgment by default based on plaintiff's failure to produce testimony). The court found the trial court abused its discretion by repeatedly extending plaintiff's time to take testimony without requiring substantial grounds or good cause for the extensions.
The trial court abused its discretion by denying defendant's third motion for a decree on bill and answer and granting additional time for a final hearing. While the chancellor has discretion in such matters, that discretion is not unlimited, and the pattern of granting extensions at plaintiff's request without requiring good cause, combined with plaintiff's failure to move for extensions until after defendant moved for a decree, constitutes an abuse of discretion.
“The Chancellor then is in the best position to determine the value of the respective factors involved and his exercise of discretion will 'not be disturbed by the appellate court except in a clear case of mistake or hardship or unless an abuse of discretion is plainly made to appear.”
Establishes the standard for reviewing trial court discretion in granting time extensions, but notes discretion is not unlimited
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Join FLexlaw to unlock all legal intelligenceAn equity cause reached issue on July 19, 1957. The defendant moved to have the cause heard on bill and answer after the initial period for taking tes…
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This is the second appearance of this cause in this Court. Upon the first appearance we affirmed an order of the trial court denying a motion that the cause be heard on bill and answer and granting a motion for enlargement of time to taire testimony. Glassman v. Deauville Enterprises, Fla. App.1958, 99 So.2d 641, 642.
It is advisable for the sake of clarity to review the procedural steps in this case from the time it came to issue. The cause in equity had reached issue on July 19, 1957. Seven days after the time for taking testimony had expired, the trial court denied appellant’s first motion that cause be heard on bill and answer and granted a sixty day extension of time for the taking of testimony. Appellee’s motion for an extension of time had been filed subsequent to the motion for hearing on bill and answer. This Court sustained the discretion of the trial court to make the order extending time, as above noted. After the expiration of the sixty days granted, no testimony ■ having been taken, and no motion for an extension of time to take testimony having been made, the appellant filed his second . motion that the cause be heard on bill and answer. Appellant’s second motion was denied and the court by order extended *433the time for taking testimony for an additional thirty days. After the expiration of the thirty day extension granted, no testimony having been taken and no motion for an extension of time having been made by the appellee, appellant filed his third motion that cause be heard on bill and answer. The trial court denied said motion and set the cause for final hearing more than thirty days later. The order denying appellant-defendant’s third motion for a hearing on bill and answer is the subject of this appeal.
We adhere to the principle which was the basis of our holding on the first appeal: “The Chancellor then is in the best position to determine the value of the respective factors involved and his exercise of discretion will 'not be disturbed by the appellate court except in a clear case of mistake or hardship or unless an abuse of discretion is plainly made to appear.” However, as is stated in the former opinion, the discretion of the chancellor upon the motion is not unlimited, and a defendant who moves for such a decree after the expiration of the time for taking testimony obtains a valuable procedural advantage which cannot lightly be set aside.
It affirmatively appears from the record before us that the chancellor was not presented, at the time of the hearing on appellant’s third motion for decree upon bill and answer, with a motion for an extension of the time for the taking of testimony, setting forth substantial grounds or showing good reason for the failure to take testimony. It is also worthy of note that the plaintiff has not moved, in any of the three instances when time was extended, until after the expiration of the time and after the defendant had moved for a decree. See, Muller v. Maxcy, Fla. 1954, 74 So.2d 879. The chancellor’s order of January 17, 1958 denying the motion of the defendant Martin L. Glassman that the cause be heard on bill and answer and granting plaintiff’s motion for a final hearing is reversed and the cause remand-ed for further proceedings not inconsistent with this opinion.
Reversed and remanded.
CARROLL, CHAS., C. J., and HORTON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nystrom v. Nystrom, 105 So. 2d 605 (Fla. 2d DCA 1958)…or, as has been observed, he is in the best position to determine the value of the various factors involved. Glassman v. Deauville Enterprises, Fla. App. 3d Dist.1958, 99 So. 2d 641. And see Glassman v. Deauville Enterprises, Fla. App. 3d Dist.1958, 101 So. 2d 432. It may well have appeared to him here, as it does to us, that neither party was entirely free of blame for the delay in resolving the cause. Further, because of the interest of the state as a silent third party in cases involving the marital status…
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Glassman v. Deauville Enters., Inc., 103 So. 2d 706 (Fla. 3d DCA 1958)…PER CURIAM. This interlocutory appeal seeks review of an order denying a motion for decree on bill and answer entered after the opinion and mandate of this court in said cause, reported in 101 So. 2d 432. In entering the order appealed, the trial judge erroneously concluded “that the former equity practice known as ‘motion for decree on bill and answer’ no longer obtains in this state”. Since the decisions of this court in City of Miami v. Miami Tr…
Authorities Cited
- Muller v. Maxcy, 74 So. 2d 879 (Fla. 1954)
- Long v. Long, 99 So. 2d 641 (Fla. 3d DCA 1958)