178 So. 3d 552
Fla. Dist. Ct. App.2015Background
- Appellant (The Bank of New York Mellon, trustee) appealed an order denying its motion to vacate a final judgment dismissing its case without prejudice.
- The dismissal resulted from Appellant’s counsel failing to appear at trial.
- Appellant’s motion to vacate alleged counsel’s nonappearance was due to clerical error (an employee saved the trial notice to the wrong computer file) and was supported by documents and three sworn affidavits.
- Trial court’s dismissal order contained no written findings other than stating Appellant received notice and failed to appear.
- Appellant argued the court should have held an evidentiary hearing and applied the Kozel factors when deciding whether dismissal was warranted.
- The First DCA reversed and remanded for an evidentiary hearing and consideration of the Kozel factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of motion to vacate a dismissal without an evidentiary hearing was error | Bank argued counsel’s failure to appear was excusable neglect due to clerical error and alleged a colorable claim entitling it to a hearing | DePiero argued dismissal was proper because notice was received and counsel did not appear | Court held denial was error; remanded for an evidentiary hearing because Appellant alleged a colorable claim of excusable neglect |
| Whether trial court needed to apply Kozel factors and make express findings before dismissing for failure to appear | Bank argued court must evaluate Kozel factors to determine if failure was more than inadvertence | DePiero relied on apparent receipt of notice to support dismissal without detailed findings | Court held trial court must apply Kozel factors and make express findings; failure to do so is reversible error |
Key Cases Cited
- Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) (establishes factors and requirement for express findings when dismissing for failure to prosecute or appear)
- Elliot v. Aurora Loan Servs., LLC, 31 So. 3d 304 (Fla. 4th DCA 2010) (secretarial or clerical error can constitute excusable neglect)
- Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985) (excusable neglect includes clerical or secretarial error and system failures)
- Wilson v. Woodward, 602 So. 2d 547 (Fla. 2d DCA 1992) (failure to calendar a hearing by a secretary can be excusable neglect)
- J.J.K. Intern., Inc. v. Shivbaran, 985 So. 2d 66 (Fla. 4th DCA 2008) (secretary’s marking a hearing as cancelled can support excusable neglect)
- Chancey v. Chancey, 880 So. 2d 1281 (Fla. 2d DCA 2004) (if a rule 1.540 motion alleges a colorable entitlement to relief, a limited evidentiary hearing should be held)
- BAC Home Loans Servicing, L.P. v. Ellison, 141 So. 3d 1290 (Fla. 1st DCA 2014) (failure to apply Kozel factors is reversible error)
- Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) (express findings ensure the judge considered whether the failure was more than mistake, neglect, or inadvertence)
- Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla. 1990) (same principle requiring express findings)
- Smith v. City of Panama City, 951 So. 2d 959 (Fla. 1st DCA 2007) (reiterating need for express findings when alternative interpretations of the record exist)