NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
KATHLEEN MADILL, )
)
Appellant, )
)
v. ) Case No. 2D18-3265
)
RIVERCREST COMMUNITY )
ASSOCIATION, INC., )
)
Appellee. )
)
Opinion filed June 7, 2019.
Appeal from the Circuit Court for
Hillsborough County; Robert A. Foster,
Jr., Judge.
Rolando J. Santiago and Gregory S.
Grossman of RJS Law Group, Apollo
Beach, for Appellant.
Charles Evans Glausier and Melissa J.
Knight, of Glausier Knight, PLLC,
Tampa, for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
Kathleen Madill appeals from an order denying her amended motion under
Florida Rule of Civil Procedure 1.090(b)(2) for an enlargement of time to file a motion for
attorney's fees and costs. Because the trial court erred in concluding that Madill had
failed to demonstrate excusable neglect, we reverse.
Madill was the prevailing party in a civil suit brought by Rivercrest
Community Association, Inc. Pursuant to the governing documents of the Association
and to section 720.305(1), Florida Statutes (2017), she was entitled as the prevailing
party to recover the attorney's fees and costs incurred in her defense. Because the final
judgment was filed on March 14, 2018,1 Madill had to serve her motion for fees and
costs by April 13, 2018. See Fla. R. Civ. P. 1.525 ("Any party seeking a judgment
taxing costs, attorney's fees, or both shall serve a motion no later than 30 days after
filing of the judgment . . . conclud[ing] the action as to that party."). Madill, however,
served her motion on May 2, 2018—nineteen days late.
Along with her untimely motion for fees and costs, Madill filed a motion for
an enlargement of time pursuant to rule 1.090(b)(2) and affidavits in support. In the
motion, Madill's counsel explained that it was his law firm's practice to monitor the
court's e-filing portal, known as JAWS, for documents from the court such as the final
judgment. The firm, however, had never received notification via JAWS regarding the
entry of a final judgment; nor had it received notification via e-service from the Clerk of
the Circuit Court. Thus, the firm had been unaware of even the existence of the final
judgment until April 30, 2018, when Madill called the firm to say that she had just
learned from looking "on-line" that final judgment had been rendered in her favor.
After receiving Madill's call, the firm's support staff had checked all service
emails, JAWS, and e-service notifications from the Clerk of the Circuit Court and could
not find any notification to the firm that a final judgment had been entered. One of the
firm's legal assistants had called the court's JAWS help desk and had been informed
1Thefinal judgment was signed on March 13, 2018, was date stamped by
the Clerk on March 14, 2018, and was recorded on March 22, 2018.
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that there was no indication that the final judgment had been served via JAWS. The
help desk clerk also had checked her "notes and history" and had found nothing to
indicate that the final judgment had been served on the firm.
Upon further investigation, another attorney with the firm—who was listed
as one of the attorneys of record but "had not worked on the litigation phase of [Madill's]
case"—discovered that he had received a copy of the final judgment as an attachment
to an email from the judge's judicial assistant (JA).2 The email looked like this:
In his affidavit, the attorney explained: "[O]ur firm relies on [JAWS] and
the Clerk's Electronic-Service systems for receipt of court documents, pleadings, and
orders. We do not expect to receive court documents directly from a Court's Judicial
Assistant." The attorney acknowledged that he must have seen the email when it had
come in, but because the email lacked the formalities prescribed in Florida Rule of
Judicial Administration 2.516, and did not otherwise indicate that it was in regard to the
2Madill filed an amended motion for an enlargement of time as the firm's
investigation into the matter progressed.
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final judgment and because he had not been involved in the litigation phase, he "must
have glossed over it and . . . failed to open the attachment or forward it to [Madill's
counsel]."
In its order denying the motion for an enlargement of time, the trial court
stated:
Whether or not [the attorney to whom the JA's email
was addressed] was involved in the litigation phase of the
case is immaterial to his conduct. [The attorney] is
designated as one of two attorneys of record for the
defendant in the Notice of Appearance . . . . The court finds
that [the attorney] "glossing over" an email from the court
and failing to open the attachment to the email pertaining to
a pending case of which he is attorney of record is
inexcusable. Moreover, to the extent the Court's email
attaching a copy of the Final Judgment did not conform to
the requirements of Rule 2.516 as Defendant asserts, the
court finds that it does not negate Defendant's responsibility
to file a timely motion. Subsection (h) of rule 2.516
specifically applies to "Service of Orders" and section (h)(3)
provides that the "subdivision is directory and a failure to
comply with it does not affect the order or judgment, its
finality, or any proceedings arising in the action."
Accordingly, the trial court concluded that Madill had failed to demonstrate excusable
neglect, denied the motion for an enlargement of time, and denied Madill's motion for
attorney's fees and costs as untimely.
Analysis
In general, "excusable neglect 'contemplate[s] that the courts would be
permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or
carelessness, as well as by intervening circumstances beyond the party's control.' "
Carter v. Lake County, 840 So. 2d 1153, 1157-58 (Fla. 5th DCA 2003) (alteration in
original) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S.
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380, 388 (1993), and rejecting a "more stringent excusable neglect standard for rule
1.090(b)").
The determination of whether the failure to abide by a
specified time limit constitutes excusable neglect is in
essence an equitable one which should take into account all
of the relevant circumstances, including prejudice to the
other party, the reason for the delay, the duration of the
delay, and whether the movant acted in good faith.
Boudot v. Boudot, 925 So. 2d 409, 416 (Fla. 5th DCA 2006) (citing Pioneer Inv. Servs.,
507 U.S. at 395).
"[E]xcusable neglect cannot be based upon an attorney's
misunderstanding or ignorance of the law . . . ." Lyn v. Lyn, 884 So. 2d 181, 185 (Fla.
2d DCA 2004) (affirming the denial of an untimely motion for enlargement because the
delay in filing the motion for attorney's fees was caused by "her counsel's
misunderstanding or lack of knowledge of the requirements of rule 1.525"); see also
Hovercraft of S. Fla., LLC v. Reynolds, 211 So. 3d 1073, 1077-78 (Fla. 5th DCA 2017)
(reversing the trial court's order granting an untimely motion for an enlargement of time
to file a motion for attorney's fees because the failure to timely file the motion for fees
was due to counsel's misapprehension that the motion for rehearing tolled the time for
filing it). Rather, "courts are inclined to find excusable neglect 'when the error occurs
due to a breakdown in the mechanical or operational practices of the attorney's office
equipment or staff.' " Hovercraft, 211 So. 3d at 1077 (quoting Boudot, 925 So. 2d at
416); see also Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304, 307 (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
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which human nature is heir.' " (quoting Somero v. Hendry Gen. Hosp., 467 So. 2d 1103,
1106 (Fla. 4th DCA 1985))).
In this case, it is troubling regardless of the extent of his actual
involvement that an attorney who was listed as counsel of record likely saw the JA's
email but "glossed over it." It goes without saying that attorneys who neglect to open
case-related emails—even facially ambiguous ones—sent directly to them by the court
do so at their own peril. But in simply concluding that the attorney's conduct in this case
was "inexcusable," the trial court failed to take all of the relevant circumstances into
account. See Boudot, 925 So. 2d at 416. The law firm had a tracking system for court
orders in place, and pursuant to that system, both the paralegal and the legal assistant
regularly reviewed emails from the Clerk of the Circuit Court and looked for notifications
from the JAWS system; they reasonably did not expect to be notified of the final
judgment from a different source. Moreover, Rivercrest Community Association, Inc.
asserted no prejudice, Madill's counsel filed the motions for fees and costs and for an
enlargement of time immediately upon realizing what had happened, and there is no
indication of bad faith. There's no question that the attorney's oversight was the result
of careless human error. But absent something more, that's exactly what excusable
neglect is.
We hold, therefore, that the trial court abused its discretion by denying
Madill's motion for an enlargement of time due to excusable neglect. Accordingly, we
reverse the order denying Madill's motion for an enlargement of time and remand for
consideration of Madill's motion for attorney's fees and costs.
Reversed and remanded for further proceedings.
VILLANTI and LUCAS, JJ., Concur.
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