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
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Bank of New York Mellon appealed the trial court's denial of its motion to vacate a judgment of dismissal without prejudice after counsel failed to appear at trial due to a clerical error. The appellate court reversed, holding that the trial court erred by failing to conduct an evidentiary hearing and apply the appropriate legal factors for excusable neglect.
Yes. The trial court erred in denying the motion to vacate without conducting an evidentiary hearing and applying the Kozel factors. When a motion to vacate alleges a colorable claim for relief based on excusable neglect, the court must conduct a limited evidentiary hearing and apply the proper legal standard.
[1] A trial court must conduct an evidentiary hearing on a motion to vacate a dismissal if the motion alleges a colorable claim for relief.
[2] Excusable neglect can be found where an attorney's failure to appear at a hearing results from secretarial or clerical error.
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Join FLexlaw to unlock all legal intelligence“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.'”
Establishes the standard for excusable neglect applicable to attorney failure to appear due to clerical error
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Join FLexlaw to unlock all legal intelligenceAppellant's counsel failed to appear at trial because an employee saved the trial notice to the wrong computer file. The motion to vacate was supporte…
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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.
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 “can-celled” 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 thq . correct standard. See BAC Home Loans Servicing, L.P. v. Ellison, 141 So.3d 1290, 1291 (Fla. 1st DCA 2014). The Court has explained that “[e]x-press 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 eviden-tiary hearing and consideration of the Ko-zel factors.
REVERSED AND REMANDED.
LEWIS, SWANSON, and WINOKUR, JJ., concur.
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Villas AT Laguna BAY Condo. Ass'n, Inc. v. Citimortgage, Inc., 190 So. 3d 200 (Fla. 5th DCA 2016)…tend telephonically. A calendaring mistake, due to -administrative, clerical, or secretarial error or a “system gone awry ” is one of the “foibles to which human nature is heir” that constitutes excusable neglect. See Bank of N.Y. Mellon v. Depiero, 178 So. 3d 552, 553 (Fla. 1st DCA 2015) (quoting Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304, 307 (Fla. 4th DCA 2010)). Moreover, a calendaring error can constitute excusable neglect where the attorney, and not a secretary, commits the error. SunTrust Mortg.…
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Collins Asset Grp., LLC v. Luisa LEE, 217 So. 3d 1066 (Fla. 5th DCA 2016)…should consider before dismissing the action. See Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). The trial judge is also required to make express findings as to these factors in the dismissal order or judgment. Bank of N.Y. Mellon v. Depiero, 178 So. 3d 552, 553 (Fla. 1st DCA 2015). In the present case, the judge did not make these findings. However, Appellant waived this potential issue by not raising it in the initial brief. See City of Miami v. Steckloff, 111 So. 2d 446, 447 (Fla. 1959) (“[Pjoints c…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)
- HAM v. Dunmire, 891 So. 2d 492 (Fla. 2004)
- Glenna Somero and Robert Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985)
- Desmond Byrd v. State, 985 So. 2d 66 (Fla. 1st DCA 2008)
- Wilson v. Woodward, 602 So. 2d 547 (Fla. 2d DCA 1992)
- Chancey v. Chancey, 880 So. 2d 1281 (Fla. 2d DCA 2004)
- Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304 (Fla. 4th DCA 2010)
- Smith v. City OF Panama City, 951 So. 2d 959 (Fla. 1st DCA 2007)
- Addison v. City OF Tampa, 31 So. 3d 304 (Fla. 2d DCA 2010)