40 Fla. L. Weekly D2775aTop of Form
Civil
procedure — Dismissal — Error to deny motion to vacate dismissal entered upon
counsel’s failure to appear at trial without conducting evidentiary hearing or
considering appropriate factors set forth in Kozel v. Ostendorf —
Excusable neglect — Motion stated colorful claim for relief where motion
explained that counsel failed to appear at trial because employee saved trial
notice to wrong computer file — Remand for evidentiary hearing and
consideration of Kozel factors
procedure — Dismissal — Error to deny motion to vacate dismissal entered upon
counsel’s failure to appear at trial without conducting evidentiary hearing or
considering appropriate factors set forth in Kozel v. Ostendorf —
Excusable neglect — Motion stated colorful claim for relief where motion
explained that counsel failed to appear at trial because employee saved trial
notice to wrong computer file — Remand for evidentiary hearing and
consideration of Kozel factors
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, as
Trustee for the Certificate Holders CWABS INC., Asset-Backed Certificates,
Series 2006-23, Appellant, v. MICHAEL DEPIERO and JOYCE DEPIERO, Appellees. 1st
District. Case No. 1D15-3065. Opinion filed December 16, 2015. An appeal from
the Circuit Court for Clay County. Frederic A. Buttner, Judge. Counsel:
Nicholas R. Cavallaro of Gilbert Garcia Group, P.A., Tampa, for Appellant.
Thomas R. Pycraft, Jr., John J. Spence, David D. Naples, Jr., and Michael J.
Pelkowski of Pycraft Law LLC, St. Augustine, for Appellees.
Trustee for the Certificate Holders CWABS INC., Asset-Backed Certificates,
Series 2006-23, Appellant, v. MICHAEL DEPIERO and JOYCE DEPIERO, Appellees. 1st
District. Case No. 1D15-3065. Opinion filed December 16, 2015. An appeal from
the Circuit Court for Clay County. Frederic A. Buttner, Judge. Counsel:
Nicholas R. Cavallaro of Gilbert Garcia Group, P.A., Tampa, for Appellant.
Thomas R. Pycraft, Jr., John J. Spence, David D. Naples, Jr., and Michael J.
Pelkowski of Pycraft Law LLC, St. Augustine, for Appellees.
(PER CURIAM.) This is an appeal of an order denying
Appellant’s motion to vacate a final judgment of dismissal without prejudice.
Appellant argues the trial court erred in denying the motion to vacate without
conducting an evidentiary hearing or considering the appropriate factors set
forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). We agree and
reverse the order denying the motion to vacate.
Appellant’s motion to vacate a final judgment of dismissal without prejudice.
Appellant argues the trial court erred in denying the motion to vacate without
conducting an evidentiary hearing or considering the appropriate factors set
forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). We agree and
reverse the order denying the motion to vacate.
In its motion to vacate the dismissal, Appellant explained
that counsel failed to appear at trial because an employee saved the trial
notice to the wrong computer file. The motion was supported by various
documents and three sworn affidavits. Courts have consistently found excusable
neglect where an attorney fails to appear at a hearing due to secretarial
error. See Elliot v. Aurora Loan Services, LLC, 31 So. 3d 304
(Fla. 4th DCA 2010) (“Excusable neglect is found ‘where inaction results from
clerical or secretarial error, reasonable misunderstanding, a system gone awry
or any other of the foibles to which human nature is heir.’ ”) (quoting Somero
v. Hendry Gen. Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985)); Wilson
v. Woodward, 602 So. 2d 547, 548-49 (Fla. 2d DCA 1992) (finding excusable
neglect where secretary for the moving party’s lawyer failed to calendar the
hearing); see also J.J.K. Intern., Inc. v. Shivbaran, 985 So. 2d
66, 68-69 (Fla. 4th DCA 2008) (finding excusable neglect where lawyer’s failure
to appear for hearing was due to error by secretary in marking the hearing
“cancelled” on calendar). Because the motion alleged a colorable claim for
relief, Appellant is entitled to an evidentiary hearing on the motion. See
Chancey v. Chancey, 880 So. 2d 1281 (Fla. 2d DCA 2004) (“If a rule 1.540
motion alleges a colorable entitlement to relief, the circuit court should
conduct a limited evidentiary hearing on the motion”).
that counsel failed to appear at trial because an employee saved the trial
notice to the wrong computer file. The motion was supported by various
documents and three sworn affidavits. Courts have consistently found excusable
neglect where an attorney fails to appear at a hearing due to secretarial
error. See Elliot v. Aurora Loan Services, LLC, 31 So. 3d 304
(Fla. 4th DCA 2010) (“Excusable neglect is found ‘where inaction results from
clerical or secretarial error, reasonable misunderstanding, a system gone awry
or any other of the foibles to which human nature is heir.’ ”) (quoting Somero
v. Hendry Gen. Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985)); Wilson
v. Woodward, 602 So. 2d 547, 548-49 (Fla. 2d DCA 1992) (finding excusable
neglect where secretary for the moving party’s lawyer failed to calendar the
hearing); see also J.J.K. Intern., Inc. v. Shivbaran, 985 So. 2d
66, 68-69 (Fla. 4th DCA 2008) (finding excusable neglect where lawyer’s failure
to appear for hearing was due to error by secretary in marking the hearing
“cancelled” on calendar). Because the motion alleged a colorable claim for
relief, Appellant is entitled to an evidentiary hearing on the motion. See
Chancey v. Chancey, 880 So. 2d 1281 (Fla. 2d DCA 2004) (“If a rule 1.540
motion alleges a colorable entitlement to relief, the circuit court should
conduct a limited evidentiary hearing on the motion”).
The trial court’s order dismissing the action provided no
written findings other than to state that Appellant received notice of the
trial and failed to appear. Failure to apply the Kozel factors
constitutes reversible error and requires remand for application of the correct
standard. See BACHome Loans Servicing, L.P. v. Ellison, 141 So.
3d 1290, 1291 (Fla. 1st DCA 2014). The Court has explained that “[e]xpress
findings are required to ensure that the trial judge has consciously determined
that the failure was more than a mistake, neglect, or inadvertence, and to
assist the reviewing court to the extent the record is susceptible to more than
one interpretation.” Ham v. Dunmire, 891 So. 2d 492, 496 (Fla. 2004) (citing
Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla.
1990)); see also Smith v. City of Panama City, 951 So. 2d 959,
962 (Fla. 1st DCA 2007).
written findings other than to state that Appellant received notice of the
trial and failed to appear. Failure to apply the Kozel factors
constitutes reversible error and requires remand for application of the correct
standard. See BACHome Loans Servicing, L.P. v. Ellison, 141 So.
3d 1290, 1291 (Fla. 1st DCA 2014). The Court has explained that “[e]xpress
findings are required to ensure that the trial judge has consciously determined
that the failure was more than a mistake, neglect, or inadvertence, and to
assist the reviewing court to the extent the record is susceptible to more than
one interpretation.” Ham v. Dunmire, 891 So. 2d 492, 496 (Fla. 2004) (citing
Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla.
1990)); see also Smith v. City of Panama City, 951 So. 2d 959,
962 (Fla. 1st DCA 2007).
We reverse and remand for an evidentiary hearing and
consideration of the Kozel factors.
consideration of the Kozel factors.
REVERSED AND REMANDED. (LEWIS, SWANSON, and WINOKUR, JJ.,
CONCUR.)
CONCUR.)