Noel v. James B. Nutter & Co., 17-0071 & 16-2901

Two consolidated foreclosure cases (Henry and Noel) where homeowners filed counterclaims alleging lenders failed to obtain HUD approval before filing suit. Counsel for both appellants was the same.
Lenders served motions for attorney’s fees under the section 57.105 “safe harbor,” asserting the counterclaims were frivolous because HUD approval predated suit.
Trial court granted entitlement to fees and issued identical standing orders setting short deadlines for objections and warning failure to object would waive challenges to the fee amounts.
Counsel’s office failed to calendar the standing-order deadlines (attributed to assistants and disruptions from Hurricane Matthew); no written objections to fee amounts were filed.
Final judgments awarding attorney’s fees and costs were entered against Henry and Noel; both moved under Fla. R. Civ. P. 1.540(b) to vacate the fee judgments based on excusable neglect, which the trial court denied.
The appellate court reversed, holding the affidavits established excusable neglect (clerical/secretarial breakdown) and remanded so appellants may object to fee submissions per the standing orders.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s failure to timely object to fee amounts due to uncalendared deadlines constitutes excusable neglect under Fla. R. Civ. P. 1.540(b)	Henry/Noel: assistant clerical error and Hurricane Matthew disrupted calendaring; affidavits show inadvertent, excusable neglect and entitlement to relief to object to fees	Reverse Mortgage/Nutter: failure to object waived challenges; no excusable neglect shown so final fee judgments should stand	Reversed: affidavits showing a clerical calendaring breakdown and hurricane disruption constitute excusable neglect; trial court abused discretion by denying 1.540(b) relief

Ocwen Loan Servicing, LLC v. Brogdon, 185 So. 3d 627 (Fla. 5th DCA 2016) (examining excusable neglect under Rule 1.540(b))
SunTrust Mortg. v. Torrenga, 153 So. 3d 952 (Fla. 4th DCA 2014) (calendaring failures can constitute excusable neglect)
Acosta v. Deutsche Bank Nat’l Tr. Co., 88 So. 3d 415 (Fla. 4th DCA 2012) (standard of review for 1.540(b) denials)
Elliott v. Aurora Loan Servs. LLC, 31 So. 3d 304 (Fla. 4th DCA 2010) (excusable neglect shown by clerical error requires relief)
Paladin Props. v. Family Inv. Enters., 952 So. 2d 560 (Fla. 2d DCA 2007) (definition of honest mistake in litigation context)
Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985) (excusable neglect may arise from secretarial error or system failure)
J.J.K. Int’l, Inc. v. Shivbaran, 985 So. 2d 66 (Fla. 4th DCA 2008) (failure to appear due to secretary’s mistake is excusable neglect)
Wilson v. Woodward, 602 So. 2d 547 (Fla. 2d DCA 1992) (secretary’s failure to calendar hearing justified 1.540(b) relief)
Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987) (breakdown in office practice can be excusable neglect)
Troiano v. Tizon, 632 So. 2d 251 (Fla. 3d DCA 1994) (appeal from denial of 1.540(b) relief does not reach merits of underlying judgment)
Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988) (same)