Handel v. Nevel, Pollack & Bellon
147 So. 3d 649
| Fla. Dist. Ct. App. | 2014Background
- Handel sued multiple defendants alleging breach of contract, securities violations, fraud in the inducement, unjust enrichment, and civil conspiracy.
- At a March 30, 2012 hearing the trial court orally dismissed Count II (breach of personal guaranty) as to Bellon, Greenwald, and Nevel, and Count V (breach of fiduciary duty) as to Pollack, stating dismissals were with prejudice. Pollack’s counsel (Goldstein) volunteered to draft the dismissal order.
- Goldstein circulated draft orders by email; after revisions he sent a third draft on May 25, 2012 attaching an order that added a paragraph stating Handel “takes nothing” and that the named defendants “shall go hence without day.” Sarelson (Handel’s counsel) read the email text but did not open the attached PDF and replied “ok.” The trial court entered the May 29, 2012 order (partial final judgment).
- Handel did not timely appeal. She moved to have the court enter a partial final judgment (to appeal) and separately sought leave to amend as to Pollack; the trial court denied both for lack of jurisdiction. She then filed a rule 1.540(b) motion to vacate the May 29 order, alleging mistake/excusable neglect and fraud/misconduct; the trial court denied relief after an evidentiary hearing.
- The trial court credited both attorneys’ testimony and found no fraud or misconduct by Goldstein and treated Sarelson’s failure to open the attachment as, at best, mutual or unilateral mistake; it denied vacatur. The appellate court reviewed for abuse of discretion and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the May 29 partial final judgment should be vacated under Fla. R. Civ. P. 1.540(b)(1) (mistake/excusable neglect) | Handel: Sarelson’s failure to open the attached order and timely appeal was excusable neglect or mutual mistake that warrants vacatur | Defendants: Counsel circulated the draft order, Sarelson read the email and agreed; failing to open the attachment is not excusable relief from judgment | Court: Denied relief — unilateral mistake of law/strategy and tactical choices are not grounds for 1.540(b) vacatur; no abuse of discretion in denying motion |
| Whether the May 29 order was procured by fraud, misrepresentation, or misconduct under Fla. R. Civ. P. 1.540(b)(3) | Handel: Goldstein’s email body suggested a non-final garden-variety dismissal while the attached order added finalizing language, amounting to misconduct | Defendants: Goldstein circulated drafts, attached the proposed order to emails and copied counsel; no malicious intent | Court: Denied relief — trial court credited Goldstein’s good-faith conduct; competent substantial evidence supports no fraud or misconduct |
| Whether the trial court abused its discretion in denying the 1.540(b) motion | Handel: The combination of counsel communications and the added paragraph made the order unfair and warrants reversal | Defendants: Trial court’s factual credibility findings are entitled to deference; denial appropriate | Court: No abuse of discretion; appellate court affirms |
| Whether the additional paragraph altered the order’s finality such that immediate appeal was required | Handel: The paragraph converted the order into a final appealable judgment | Defendants: Even dismissal with prejudice can be complex re: finality; debate exists | Court: Did not decide the hypothetical finality question; found denial proper regardless of that unresolved complexity |
Key Cases Cited
- Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So. 3d 1097 (Fla. 3d DCA) (standard of review for 1.540(b) is abuse of discretion)
- Schwab & Co. v. Breezy Bay, Inc., 360 So. 2d 117 (Fla. 3d DCA) (broad deference to trial court on 1.540 motions)
- Siewert v. Casey, 80 So. 3d 1114 (Fla. 4th DCA) (trial court credibility findings supported by substantial evidence bind appellate court)
- Skinner v. Skinner, 579 So. 2d 358 (Fla. 4th DCA) (unilateral mistakes of law or misunderstanding results are not grounds for 1.540 relief)
- Hermitage Ins. Co. v. Oxygen in the Grove, 30 So. 3d 549 (Fla. 3d DCA) (tactical choices are not remediable under rule 1.540)
- Bd. of Cnty. Comm’rs of Madison Cnty. v. Grice, 438 So. 2d 392 (Fla. 1983) (distinguishing nonfinal orders on motions to dismiss from final dismissal of a complaint)
- Hayward & Assocs. v. Hoffman, 793 So. 2d 89 (Fla. 2d DCA) (explaining hybrid dismissal orders and finality complexity)