BRIAN KELLY A/K/A BRIAN K. KELLY, APPELLANT,
v.
BANKUNITED, FSB, APPELLEE
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The court held that a trial court's denial of a motion for rehearing based on excusable neglect, when the neglect was due to a secretarial error causing the attorney's absence from a hearing, was an abuse of discretion.
BankUnited filed a foreclosure complaint against Brian Kelly. Kelly's attorney failed to appear at the summary judgment hearing due to a secretarial e…
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BankUnited, FSB, filed a foreclosure complaint against Brian Kelly. In response, Kelly filed an answer and affirmative defenses, which were later amended. BankUnited requested summary judgment, and a hearing was held. However, Kelly’s attorney was unable to attend the hearing due to a secretarial error, which was evidenced by affidavit. Although Kelly’s attorney immediately requested rehearing pursuant to Florida Rule of Civil Procedure 1.530 based upon excusable neglect, it was denied. We find this was an error and reverse.
A trial court may relieve a party from a final judgment upon a showing of excusable neglect. Denial of relief on such basis is reviewed for an abuse of discretion. See SunTrust Bank v. Puleo, 76 So.3d 1037, 1039 (Fla. 4th DCA 2011).
We have previously held that an attorney’s failure to appear due to secretarial error is excusable neglect. J.J.K. Int’l., Inc. v. Shivbaran, 985 So.2d 66, 69 (Fla. 4th DCA 2008). Because here, Kelly’s attorney failed to appear as a result of his secretary mistakenly scheduling multiple hearings at different courthouses at the same time, the trial court erred by refusing to rehear the motion for summary judgment.
Because the record demonstrates excusable neglect, it was error to deny Kelly’s motion for rehearing. As a result, we find *982it necessary to reverse and remand to the trial court for rehearing of BankUnited’s motion for summary judgment.
Reversed and remanded.
GROSS, CIKLIN and CONNER, JJ., concur.
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Kelly v. Bankunited, FSB, 159 So. 3d 403 (Fla. 4th DCA 2015)…re attempting to dismiss the action below. Over a year after the short sale, we reversed the order of final summary judgment and remanded the case to the trial court for rehearing on Appellee’s motion for summary judgment. Kelly v. BankUnited, FSB, 125 So. 3d 981 (Fla. 4th DCA 2013). On remand, Appellant moved for attorneys’ fees and costs in the trial court, arguing that he is the prevailing party in the case and entitled to fees under the terms of the mortgage document and section 57.105(7). Upon a magistr…
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Fast Funds, Inc. v. Aventura Orthopedic Care Ctr., 279 So. 3d 168 (Fla. 4th DCA 2019)…Appellate Analysis A trial court’s denial of relief from judgment upon a showing of excusable neglect, including relief pursuant to Florida Rule of Civil Procedure 1.530, is reviewed for an abuse of discretion. See Kelly v. BankUnited, FSB, 125 So. 3d 981, 981 (Fla. 4th DCA 2013). 4 In denying Appellant’s rule 1.530 motion, the trial court cited rule 1.540 and our opinion in Torrenga. In Torrenga, we pointed out that “[u]nder Florida Rule of Civil Procedure 1.540(b), a party can seek relie…
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Collins Asset Grp., LLC v. Luisa LEE, 217 So. 3d 1066 (Fla. 5th DCA 2016)…el also provided the untimely status report. The trial judge denied the motion without a hearing. Whether Appellant’s motion was brought pursuant to rule 1.530 or 1.540, the abuse of discretion review standard applies. See Kelly v. BankUnited, FSB, 125 So. 3d 981, 981 (Fla. 4th DCA 2013) (stating a trial court’s denial of relief from a final judgment for excusable neglect is reviewed for abuse of discretion). I conclude that the trial judge did not abuse her discretion in denying the “Motion for Rehearing an…1 / 2
Authorities Cited
- Desmond Byrd v. State, 985 So. 2d 66 (Fla. 1st DCA 2008)
- Suntrust Bank v. Dr. Marc Puleo, M.D., 76 So. 3d 1037 (Fla. 4th DCA 2011)