LENNAR SPANISH LAKES

v.

MARIE B. DESTIN

Before: WALSH, TRAWICK, and SANTOVENIA, JJ.

Filing # 107503283 E-Filed 05/14/2020 05:03:22

Lennar Spanish Lakes Homeowners Association, Inc. (“Lennar”) appeals an order of dismissal entered by the trial court on October 23, 2018. The Order dismissed an Amended Complaint to Foreclose on a Homeowners’ Association Lien against Marie B. Destin and Wilson Destin (the Destins). Lennar also appeals the trial court’s denial of their motion for rehearing and reconsideration, entered on November 28, 2018. On July 30, 2018, Lennar filed a “Complaint to Foreclose Homeowners Association Lien” against the Destins, which incorrectly identified Marie B. Destin. In response, the Destins filed a pro se letter claiming that the allegation that they owed money was false. The trial court treated their letter as a motion to dismiss and noticed a hearing on the motion and for a status conference. At the hearing, the trial court reviewed evidence of payments presented by the Destins and suggested that Lennar review the Destins’ alleged payments as well as its own ledgers to confirm the amounts allegedly owed. The trial court then granted the Destins’ motion to dismiss without prejudice. Subsequently, Lennar filed an amended “Complaint to Foreclose Homeowners Association Lien.” However, Lennar stood by its ledgers and did not amend any information regarding the amount owed. A notice of hearing for a second status conference was served on both parties by U.S. Mail on October 18, 2018, for a [*3] Page³ of 8 hearing scheduled for October 23, 2018. Notably, this notice of status conference did not notify the parties of any evidentiary hearing or that the motion to dismiss would be heard. At the status conference, the trial court again treated another letter from the Destins as a motion to dismiss and immediately held a hearing on the motion. An exhibit list from that hearing reflects the submission of three exhibits by the Destins:¹) Exhibit A “Check Summary & Checks Paid 03/06 & 03/19;”²) Exhibit B “Checking Summary & Checks Paid 06/27:” and,³) Exhibit C “Chase Summary Chase Total Checking.”¹ In its order dismissing the amended complaint, the trial court stated: Based upon the Defendant providing proof of HOA payments which were alleged in the Complaint to have not been paid, this matter is hereby dismissed. Plaintiff has failed to appear after being properly noticed of todays [sic] hearing.

Lennar then filed “Plaintiff’s Motion for Rehearing and Reconsideration.” In the motion, Lennar argued that they did not receive notice of the October 23, 2018 hearing. In addition, they maintained that the notice failed to mention that there would be an evidentiary hearing on the motion to dismiss and was thus insufficient. After a hearing on November 28, 2018, the trial court denied the motion. This appeal followed.

[*4] Page 4 of 8 We first address the issue of notice of the October 23, 2018 hearing. The notice was allegedly sent by U.S. Mail to Lennar’s address. “[M]ail properly addressed, stamped and mailed creates a rebuttable presumption of receipt and that proof of general office practices satisfies the requirement of showing due mailing.” Home Ins. Co. v. C & G Sporting Goods, Inc., 453 So. 2d 121, 123 n.3 (Fla. 1st DCA 1984). Lennar countered this rebuttable presumption by filing affidavits of its counsel and two of his legal assistants attesting to lack of notice. They thus alleged that their absence from the hearing was due to excusable neglect pursuant to Florida Rule of Civil Procedure 1.540(b). “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.” Suntrust Mortgage v. Torrenga, 153 So. 3d 952, 954 (Fla. 4th DCA 2014) (citations omitted). In City of Pembroke Pines v. Zitnick, 792 So. 2d 677, 678 (Fla. 4th DCA 2001), the court found that a secretarial scheduling error constituted excusable neglect.”² Similarly here, the affidavits attesting to a lack of notice were sufficient to meet Lennar’s [*5] Page 5 of 8 burden to establish excusable neglect. There was no evidence admitted at the hearing on Lennar’s motion to rebut these affidavits. Instead, there was a discussion regarding evidence the trial court considered at the October 23rd hearing. Accordingly, the trial court abused its discretion by denying the motion for rehearing and reconsideration and not setting aside the order of dismissal. See Benefit Administrative Systems, LLC. V. West Kendall Baptist Hospital, Inc., 274 So. 3d 480, 483 (Fla. 3d DCA 2019); Suntrust Mortgage v. Torrenga, 153 So. 3d 952, 954-55 (Fla. 4th DCA 2014). Even if Lennar had received the hearing notice, it only indicated that a status conference was being held. “[I]f the court is to allow testimony in disputed motion calendar hearings, specific notice of such intention must be given, with a sufficient interval to prepare and adequate opportunity to present contrary testimony prior to ruling.” Herranz v. Siam,² So. 3d 1105 (Fla. 3d DCA 2009); Juliano v. Juliano, 687 So. 2d 910, 911 (Fla. 3d DCA 1997). Despite the fact that the hearing was only noticed for a Status Conference, the court reviewed evidence presented by the Destins. Lennar should have had notice that evidence was to be taken, as well as a sufficient interval to prepare and an adequate opportunity to present contrary testimony. Every party litigant is entitled to his “day in court,” and this includes the right of a plaintiff to present admissible evidence in an attempt to prove the cause of action he has alleged. … [*6] Page 6 of 8 Kelly v. Webb, 676 So. 2d 538, 539 (Fla. 5th DCA 1996) (citing Sapp v. Redding, 178 So. 2d 204, 206 (Fla. 1st DCA 1965). Lennar was deprived of that right due to the insufficiency of the notice for the October 23rd hearing. Additionally, “a party’s self-representation does not relieve the party of the obligation to comply with any appropriate rules of civil procedure.” Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992). The Destins’ filing of pro se letters rather than complying with Florida Rule of Civil Procedure 1.100(b)³ and 1.090(d)4 led to confusion and inadequate notice. [I]t is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney. Section 454.18, Florida Statutes (1991) clearly provides ‘any person ... may conduct his own cause in any court of this state ... subject to the lawful rules and discipline of such court.’ Id. at 540 (citing Carr v. Grace, 321 So. 2d 618 (Fla. 3d DCA 1975), cert. denied, 348 So. 2d 945 (1977)).

While our findings regarding the sufficiency of notice to Lennar require reversal, we also address the trial court’s order granting the Destins’ motion to dismiss, as the issues related to it may reoccur upon remand. The standard of review 4 “For Motions. A copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing.” Fla. R. Civ. P. 1.090(d) [*7] Page 7 of 8 for orders granting motions to dismiss is de novo. Cornfeld v. Plaza of the Americas Club, Inc., 273 So. 3d 1096, 1098 (Fla. 3d DCA 2019); Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLP, 137 So. 3d 1081, 1088 (Fla. 3d DCA 2014). In considering a motion to dismiss, the trial court is confined to the four corners of the complaint. Minor v. Brunetti, 43 So. 3d 178, 179 (Fla. 3d DCA 2010). “‘[A] trial court may not rely upon depositions, affidavits, or other forms of evidence or speculation as to whether the allegations in the complaint ‘will ultimately be provable.’” Enlow v. E.C. Scott Wright, P.A., 274 So. 3d 1192, 1193 (Fla. 5th DCA 2019). “A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues.” Brunetti, 43 So. 3d at 179 (citing The Fla. Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006)).

At the July 30, 2018 hearing, the trial court reviewed evidence of payments presented by the Destins and told Lennar that they should review these payments and confirm the amounts owed. Then again at the October 23, 2018 hearing, the trial court also indicated that it considered matters outside of the complaint: THE COURT: I mean, there might be some payments owed, sir, but you know, he did show me proof of payment for monies that you are requesting. (R. 153). The Court also stated the following in its order of dismissal after that hearing:

Based upon the Defendant providing proof of HOA payments which were alleged in the Complaint to have not been paid, this matter is hereby [*8] Page 8 of 8 dismissed. Plaintiff has failed to appear after being properly noticed of todays [sic] hearing.

The consideration by the trial court of the alleged payments by the Destins went beyond the constraints of the four corners of the complaint. This was error. The order of dismissal is hereby REVERSED, and the case is REMAND- ED for further proceedings consistent with this opinion. WALSH and SANTOVENIA, JJ. concur.