Opinion
No. 90-1167.
October 2, 1990.
Appeal from the Circuit Court, Dade County, Philip Cook, J.
Mandel Weisman and William S. Weisman, Ft. Lauderdale, for appellant.
Thornton Mastrucci and Sergio V. Medina, Miami, for appellee.
Before BARKDULL, FERGUSON and COPE, JJ.
We conclude, contrary to the position of appellant The Burke Company, that a trial court has discretion in the application of Rule 1.060(c), Florida Rules of Civil Procedure. Here, defendant Burke successfully moved for a transfer of venue under Rule 1.060. Under Rule 1.060(c), plaintiff United States Telephone Company was obliged to pay the clerk's service charge within thirty days but inadvertently failed to do so. The charge was promptly paid as soon as U.S. Telephone learned it was overdue. Burke contends that the trial court was nonetheless required to dismiss without prejudice under Rule 1.060(c), given that the payment was late. We disagree. The court had discretion in the matter. There is not the slightest suggestion of prejudice to Burke, and the position taken by the trial court is consistent with the admonition that the "rules shall be construed to secure the just, speedy and inexpensive determination of every action." Fla.R.Civ.P. 1.010.
Affirmed.