Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

March 8, 2019 by Jennifer Kennedy

Civil procedure — Relief from judgment — Excusable neglect — Trial court erred in denying plaintiff’s rule 1.540(b) motion seeking relief from dismissal of case after plaintiff missed court’s deadline to file demand for arbitration — Motion provided a reasonable and credible explanation for the missed deadline based on secretarial error where counsel submitted affidavit from counsel’s legal assistant wherein the legal assistant explained that it was her first time handling an arbitration case and, based on a misreading of a form, the legal assistant believed her initial request for mediation also served as a demand for arbitration — Trial court erroneously faulted counsel for entrusting his legal assistant to complete demand for arbitration form where form did not require an attorney’s signature and required only basic case information

44 Fla. L. Weekly D625a

Civil procedure — Relief from judgment — Excusable neglect — Trial court erred in denying plaintiff’s rule 1.540(b) motion seeking relief from dismissal of case after plaintiff missed court’s deadline to file demand for arbitration — Motion provided a reasonable and credible explanation for the missed deadline based on secretarial error where counsel submitted affidavit from counsel’s legal assistant wherein the legal assistant explained that it was her first time handling an arbitration case and, based on a misreading of a form, the legal assistant believed her initial request for mediation also served as a demand for arbitration — Trial court erroneously faulted counsel for entrusting his legal assistant to complete demand for arbitration form where form did not require an attorney’s signature and required only basic case information

REKHA SHAH, Appellant, v. TRANSDERMAL DELIVERY SOLUTIONS CORP., KENNETH KIRBY, and LONG VU, Appellees. 4th District. Case No. 4D18-1088. March 6, 2019. Appeal of a nonfinal order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; James Nutt, Judge; L.T. Case No. 50-2016-CA-003446-XXXX-MB. Counsel: David L. Gorman of David L. Gorman, P.A., North Palm Beach, for appellant. Jack J. Aiello and Devin S. Radkay of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellees.

(PER CURIAM.) Plaintiff, Rekha Shah, appeals an order denying her motion for relief from a judgment of dismissal pursuant to Florida Rule of Civil Procedure 1.540(b). The court dismissed the case after plaintiff missed the court’s deadline to file a demand for arbitration. Plaintiff contends the trial court erred because plaintiff’s counsel missed the filing deadline due to excusable neglect. We agree.

In the underlying action, plaintiff and her late husband sought to rescind a stock sale pursuant to Chapter 517, Florida Statutes. Defendants responded with a demand for arbitration pursuant to the sales contract. Because mediation was a precondition to the right to arbitration, the parties agreed to attend mediation first. Accordingly, the court issued an order abating the trial proceedings pending mediation, noting that if mediation resulted in an impasse and the parties did not file for arbitration by August 1, 2017, “this case shall be dismissed for lack of prosecution.”

The parties reached an impasse at mediation. When plaintiff did not file a demand for arbitration by the court’s deadline, the case was dismissed.1

Nine days after the missed deadline, plaintiff moved for relief from the dismissal. Plaintiff’s counsel contended he missed the deadline due to excusable neglect because of a misunderstanding between counsel and his legal assistant. In support of this motion, counsel submitted an affidavit from his legal assistant wherein the legal assistant explained that this was her first time handling an arbitration case with the American Arbitration Association (“AAA”). Based on a misreading of an AAA form, the legal assistant believed that the initial request for mediation she filed also served as a demand for arbitration. Therefore, when counsel asked her if she filed the demand for arbitration before the court deadline, she mistakenly informed counsel that she had. The legal assistant learned that a separate demand for arbitration was required and that plaintiff had missed the deadline when she contacted the AAA to obtain a list of potential arbitrators.

After a hearing, the court denied plaintiff’s motion for relief from judgment and closed the case. The court concluded that the missed deadline was not excusable under the law because it was “not a case of secretarial or clerical mistake, e.g., failing to calendar a date, computer error or the like.” The court reasoned that counsel should not have entrusted the task to his assistant when that was her first time handling an AAA arbitration. The court concluded that, “[n]ot having initiated any of the lawyerly tasks required to comply, plaintiff’s counsel should not now be excused from missing the clear Court ordered deadline.”

Pursuant to Florida Rule of Civil Procedure 1.540(b), “the court may relieve a party or the party’s legal representative from final judgment, decree, order, or proceeding” upon a showing of “mistake, inadvertence, surprise, or excusable neglect.” Fla. R. Civ. P. 1.540(b). “Excusable neglect” includes “inaction result[ing] from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.” Somero v. Hendry Gen. Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985). It is a gross abuse of discretion for a trial court to deny relief under 1.540(b) “upon timely application accompanied by a reasonable and credible explanation” for such inaction. Id.

Here, the court erred in denying plaintiff’s Rule 1.540(b) motion for relief as plaintiff’s motion was both timely and provided a reasonable and credible explanation for the missed deadline based on secretarial error. Although the trial court faulted counsel for entrusting his legal assistant to complete the demand for arbitration form, the form does not require an attorney’s signature and instead requires only basic case information such as the parties’ and attorneys’ names and addresses. Moreover, counsel asked his legal assistant before the deadline if she filed the demand for arbitration and she mistakenly represented she had. This is the type of “secretarial error” and “reasonable misunderstanding” encompassed by Rule 1.540(b)’s “excusable neglect” provision.

For these reasons, we reverse the trial court’s order denying plaintiff’s motion for relief from judgment and closing the case. The case is remanded with instructions for the trial court to reinstate the case. (GROSS, MAY and DAMOORGIAN, JJ., concur.)

__________________

1This case was not dismissed for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e).

* * *

Filed Under: Uncategorized

Primary Sidebar

Recent Posts

  • Insurance — Commercial property — Coverage — Business losses — Business interruption — All-risk commercial policy providing coverage for “direct physical loss of or damage to” property or “direct physical loss or damage to” property does not insure against losses and expenses incurred by business as result of COVID-19 — Under Florida law there is no coverage because COVID-19 did not cause tangible alteration of the insured properties
  • Insurance — Commercial property — Coverage — Business income losses — Trial court’s finding that policy covering loss of business income due to the suspension of operations caused by “direct physical loss or damage to property” required some tangible alteration to insured property comported with common meaning of its terms and context of policy as a whole — Policy did not cover economic losses insured suffered when it suspended its operations due to COVID-19 pandemic — No error in dismissing with prejudice insured’s petition for declaratory relief and damages
  • Torts — Negligent security — Sovereign immunity — Agency — Limited immunity — Punitive damages — Amendment of complaint — Action brought against company which contracted with county to provide security services and its employee — Defendant company was entitled to limited sovereign immunity under 768.28(5) where county asserted a degree of control over defendant’s employees — Fact that defendant’s employee was working alone rather than side-by-side with county employees did not change level of control county had over defendant employee as evidenced by contract between county and defendant — Absolute immunity under section 768.28(9) applied to defendant employee, but did not apply to defendant company because it is a corporation — No abuse of discretion in denying plaintiff’s motion for leave to amend complaint to add count for punitive damages where record is devoid of evidence that defendant employee engaged in intentional misconduct or gross negligence
  • Insurance — Attorney’s fees — Assignee’s action against insurer to recover payment for construction work performed on insured property following hurricane damage — Court adopts magistrate’s report and recommendation concluding that Section 627.7152(10), Florida Statutes, which repeals assignee’s standing to recover attorney’s fees under section 627.428, does not apply in instant case where both issuance of policy and assignment agreement predated effective date of statute — Whether relevant date for purposes of applying statute is date policy was issued or date assignment agreement was entered into need not be resolved under circumstances — Motion to strike plaintiff’s claims for attorney’s fees is denied
  • Torts — Dog bite — Negligence — Sheriffs — Sovereign immunity — Action alleging deputy sheriff was negligent in handling K-9 that bit plaintiff while attending a public event — Trial court erred in dismissing complaint against sheriff on ground that action was barred by sovereign immunity — Although a plaintiff may not rely on section 767.04 when suing a state agency for a dog bite because it is a strict liability statute, a plaintiff may bring such a suit in common-law negligence — Complaint adequately stated a cause of action for negligence under common law principles — Court rejects argument that plaintiff placed himself in zone of risk by approaching area occupied by deputy and police dog, and that because deputy did not move in proximity to plaintiff there was no zone of risk created by conduct of deputy — Deputy created the zone of risk by patrolling the venue with his K-9 — Whether the deputy was walking around or standing still was irrelevant — Because plaintiff was in a public location he had the right to walk where he wanted, including right up to the deputy, and, unless warned by the deputy to move away, plaintiff had a reasonable expectation that the dog would not bite him — Lawsuit was not barred by sovereign immunity where, although the decision to patrol the public venue with K-9s may have been a discretionary function, the act of patrolling the venue with K-9s was operational

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2022 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982