Third District Court of Appeal
State of Florida
Opinion filed November 1, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-71
Consolidated: 3D16-2901
Lower Tribunal Nos. 15-27834, 14-16701
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Saint Luc Jean Noel,
Appellant,
vs.
James B. Nutter & Company,
Appellee.
_______________________________________________________
Marie Ann Henry,
Appellant,
vs.
Reverse Mortgage Solutions, Inc.,
Appellee.
Appeals from non-final orders from the Circuit Court for Miami-Dade
County, Antonio Marin, Judge.
Morris | Barrow, LLP, and J. Wil Morris, for appellants.
Robertson, Anschutz & Schneid, P.L., and David Rosenberg and Jarrett
Cooper (Boca Raton), for appellees.
Before LAGOA, SALTER, and LINDSEY, JJ.
LAGOA, J.
The appellants in this consolidated appeal seek review of the trial court’s
denial of respective motions for relief from final judgments of attorney’s fees and
costs pursuant to Florida Rule of Civil Procedure 1.540(b). Because the trial court
abused its discretion in failing to vacate the relevant final judgments on the basis of
excusable neglect, we reverse and remand for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The underlying facts concern separate mortgage foreclosure actions. The
relevant factual circumstances of each case are as follows:
A. Case Number 3D16-2901
In Case Number 3D16-2901, appellee, Reverse Mortgage Solutions, Inc.
(“Reverse Mortgage”), filed a complaint to foreclose mortgage against appellant,
Marie Ann Henry (“Henry”), on June 26, 2014 (the “Henry case”). On March 30,
2016, Henry filed an answer, affirmative defenses, and counterclaims. Henry’s
counterclaims were based on her allegation that Reverse Mortgage failed to obtain
approval from the Secretary of Housing and Urban Development (“HUD”) prior to
commencing its foreclosure action. Shortly thereafter, on April 26, 2016, Reverse
Mortgage served Henry’s counsel with a motion for attorney’s fees pursuant to the
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“safe harbor” provision of section 57.105(4), Florida Statutes (2016).1 Reverse
Mortgage asserted that the counterclaims were devoid of legal or factual support,
and therefore frivolous, within the meaning of section 57.105 because Reverse
Mortgage obtained approval from HUD on March 25, 2014, prior to commencing
suit. Henry failed to timely withdraw the counterclaims, and Reverse Mortgage
subsequently filed its motion for attorney’s fees.
1 Section 57.105, Florida Statutes, provides in relevant part:
(1) Upon the court’s initiative or motion of any party, the
court shall award a reasonable attorney’s fee, including
prejudgment interest, to be paid to the prevailing party in
equal amounts by the losing party and the losing party’s
attorney on any claim or defense at any time during a
civil proceeding or action in which the court finds that
the losing party or the losing party’s attorney knew or
should have known that a claim or defense when initially
presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to
establish the claim or defense; or
(b) Would not be supported by the application of then-
existing law to those material facts.
....
(4) A motion by a party seeking sanctions under this
section must be served but may not be filed with or
presented to the court unless, within 21 days after service
of the motion, the challenged paper, claim, defense,
contention, allegation, or denial is not withdrawn or
appropriately corrected.
3
On September 26, 2016, the trial court entered an order granting Reverse
Mortgage entitlement to attorney’s fees. On that same date, the trial court issued a
standing order on attorney’s fees and costs (the “standing order”). The standing
order set forth deadlines for the parties’ submissions related to the determination of
an amount of fees. Specifically, the standing order provided that within ten days of
the moving party’s compliance with submissions, the non-moving party must
respond in writing to each item of costs and fees, and that a failure to timely object
shall constitute a waiver and approval of all fees and costs requested. The standing
order also provided that no hearing was required if the non-moving party failed to
object to the amounts sought. Henry failed to respond or object to Reverse
Mortgage’s submissions regarding the amounts of its fees, and on October 18,
2016, the trial court entered a final judgment of attorney’s fees and costs against
Henry and her counsel in an amount consistent with Reverse Mortgage’s
submissions.
After receiving a copy of the final judgment of attorney’s fees and costs,
Henry filed a verified motion for relief from final judgment of attorney’s fees and
costs pursuant to Florida Rule of Civil Procedure 1.540(b). Henry sought to vacate
the final judgment on the basis of excusable neglect and to be allowed the
opportunity to raise objections to the amount of fees sought by Reverse Mortgage.
Specifically, Henry’s counsel attested that “none of the deadlines outlined in the
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Standing Order were ever noted or calendared” by his assistants, for whom
calendaring is the sole responsibility in his office. Counsel attested that “but for
the innocent failure to calendar the deadlines contained in the Standing Order” he
would have objected to the time sheets submitted by Reverse Mortgage in support
of attorney’s fees. Counsel also stated that the Standing Order was filed on
October 4, 2016, “the day before offices began closing due to Hurricane Matthew”
and that this partially lead to the failure to calendar the deadlines outlined in the
standing order.
On November 28, 2016, the trial court denied Henry’s verified motion for
relief from final judgment of attorney’s fees and costs, finding that “there was no
establishment of excusable neglect.” Henry appeals from the trial court’s order
denying her motion for relief from final judgement of attorney’s fees and costs.
B. Case Number 3D17-712
In Case Number 3D17-71, appellee, James B. Nutter & Co. (“Nutter”), filed
a complaint to foreclose mortgage against appellant, Saint Luc Jean Noel (“Noel”),
on November 30, 2015 (“Noel case”). Noel was represented in the foreclosure
action by the same counsel as Henry.3 As he did in the Henry case, Noel’s counsel
2 As these cases were consolidated for appellate purposes on the basis that the
factual and procedural histories of the two cases were substantially similar, we also
include a brief description of the underlying proceedings in Case Number 3D17-
71.
3 Nutter and Reverse Mortgage were also represented by the same counsel.
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filed counterclaims based upon a factual allegation that Nutter failed to obtain
approval from HUD prior to commencing its foreclosure action. Nutter served
Noel’s counsel with a motion for attorney’s fees pursuant to the “safe harbor”
provision of section 57.105(4), alleging entitlement to attorney’s fees on the basis
that it obtained approval from HUD prior to commencing suit, and therefore
Noel’s counterclaims were devoid of factual or legal support. The counterclaims
were not timely withdrawn, and Nutter filed its motion with the trial court.
On September 26, 2016, the trial court entered an order granting Nutter
entitlement to attorney’s fees. On that same day, the trial court also issued a
standing order on attorney’s fees and costs which contained the same deadlines as
those set forth in the standing order issued in the Henry case. Noel failed to
respond or object to Nutter’s submissions regarding the amount of its fees, and on
November 7, 2016, the trial court entered a final judgment of attorney’s fees and
costs against Noel and his counsel in an amount consistent with Nutter’s
submission.
Noel subsequently filed a verified motion for relief from final judgment of
attorney’s fees and costs, seeking to vacate the final judgment and an opportunity
to raise objections to the amount of attorney’s fees sought. Noel’s counsel made
the same allegations of excusable neglect that he made in the Henry case—
attesting that “none of the deadlines outlined in the Standing Order were ever
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noted or calendared by the undersigned counsel’s office,” and that the failure to
calendar the deadlines was partially because the standing order was sent during
preparations for Hurricane Matthew. Following a hearing, the trial court entered
an order on December 12, 2016, denying Noel’s motion for relief from final
judgment of attorney’s fees. Noel appeals from the trial court’s order denying his
motion for relief from final judgement of attorney’s fees.
II. STANDARD OF REVIEW
The denial of a motion for relief from final judgment under Florida Rule of
Civil Procedure 1.540(b) is reviewed for an abuse of discretion. See Ocwen Loan
Servicing, LLC v. Brogdon, 185 So. 3d 627, 629 (Fla. 5th DCA 2016); SunTrust
Mortg. v. Torrenga, 153 So. 3d 952, 953 (Fla. 4th DCA 2014); Acosta v. Deutsche
Bank Nat’l Tr. Co., 88 So. 3d 415, 417 (Fla. 4th DCA 2012).
III. ANALYSIS
The appellants and their counsel sought relief under rule 1.540(b), which
provides in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud; etc. On motion and upon
such terms as are just, the court may relieve a party or a
party’s legal representative from a final judgment,
decree, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect .
...
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Rule 1.540(b)(1) “‘envisions an honest mistake made during the regular course of
litigation, including those that result from oversight, neglect, or accident.’” Ocwen
Loan Servicing, 185 So. 3d at 629 (quoting Paladin Props. v. Family Inv. Enters.,
952 So. 2d 560, 562 (Fla. 2d DCA 2007)). “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.’”
Elliott v. Aurora Loan Servs. LLC, 31 So. 3d 304, 307 (Fla. 4th DCA 2010)
(quoting Somero v. Hendry Gen. Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA
1985)). Where a failure to act is the result of clerical or secretarial error, excusable
neglect is established under rule 1.540(b). See Ocwen Loan Servicing, 185 So. 3d
at 630 (finding that counsel’s absence from case management conference
constituted excusable neglect where firm’s clerk misplaced order setting
conference); SunTrust Mortg., 153 So. 3d at 954 (“[T]he attorney’s unintentional
absence in the instant case due to inadvertent calendaring is the type of mistake
excused by Florida Rule of Civil Procedure 1.540(b), as well as judicial
precedent.”); J.J.K. Int’l, Inc. v. Shivbaran, 985 So. 2d 66, 68 (Fla. 4th DCA 2008)
(holding that defense counsel’s failure to appear at hearing was excusable neglect
where secretary accidentally identified the hearing as cancelled); Wilson v.
Woodward, 602 So. 2d 547, 549 (Fla. 2d DCA 1992) (finding plaintiff was entitled
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to rule 1.540(b) relief from judgment where counsel’s failure to attend hearing was
due to secretary’s failure to calendar hearing).
“‘Excusable neglect must be proven by sworn statements or affidavits.’”
Elliott, 31 So. 3d at 307 (quoting Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 2d
DCA 2004)). In this case, counsel for both Henry and Noel provided affidavits
explaining the clerical mishap that led to counsel failing to comply with the
deadlines set forth in the standing order. Specifically, counsel for both Henry and
Noel attested that the calendaring responsibility in his office lies solely with his
assistants, and that in this instance, his assistants failed to calendar the deadlines
set forth in the relevant standing orders. Moreover, office preparations for
Hurricane Matthew contributed to the assistants’ failure to follow normal office
procedure and calendar the deadlines. Counsel also attested that but for the failure
to calendar the deadlines, he would have objected to the time sheets submitted by
Reverse Mortgage and Nutter. These undisputed facts constitute the type of
secretarial error or breakdown in normal office procedure, which constitute
excusable neglect pursuant to rule 1.540(b). See Carter, Hawley, Hale Stores, Inc.
v. Whitman, 516 So. 2d 83, 83-84 (Fla. 3d DCA 1987) (holding that neglectful, but
understandable breakdown in defendant’s established office practice that resulted
in the complaint being lost on the desk of general counsel constituted excusable
neglect).
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III. CONCLUSION
Because the failure to comply with the deadlines set forth in the standing
orders was the result of excusable neglect, we find that the trial court abused its
discretion in denying the respective motions for relief from final judgment of
attorney’s fees and costs. On remand, Henry and Noel shall be given an
opportunity to respond and object to Reverse Mortgage’s and Nutter’s submissions
regarding attorney’s fees in accordance with the terms of the standing orders.4
Reversed and remanded for further proceedings.
4 We decline to address any arguments directed toward the merits of the underlying
final judgments of attorney’s fees and costs. The law is clear that an appeal from
an order denying a motion to vacate under rule 1.540(b) does not encompass the
merits of the final judgment sought to be vacated or any other judgment. See
Troiano v. Tizon, 632 So. 2d 251, 252-53 (Fla. 3d DCA 1994); Shields v. Flinn,
528 So. 2d 967, 968 (Fla. 3d DCA 1988).
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