Halpern v. HouserHalpern v. Houser
Andrew M. Moss of Kutner, Rubinoff & Bush, P.A., Miami, for appellees.
PER CURIAM.
The appellants, Jennifer Denise Halpern, M.D., Maria Mazzitelli Romano, C.R.N.A., and South Broward Hospital District d/b/a Memorial Regional Hospital, appeal a non-final order granting the appellees‘, Andrea and Paul Houser (the Housers), Motion for Relief from Judgment. We reverse and remand for the Housers to file a sworn Motion for Relief from Judgment and for the trial court to conduct an evidentiary hearing.
In May 2004, the Housers filed this medical malpractice action against the appellants, Jennifer Denise Halpern, M.D., Maria Mazzitelli Romano, C.R.N.A., and South Broward Hospital District d/b/a Memorial Regional Hospital. A year later, in July 2005, the trial court set the case for non-binding arbitration. On February 2, 2006, the arbitrator entered an arbitration award in favor of the appellants, finding that the appellants were not at fault and did not fall below the standard of care.
According to
On April 11, 2006, the Housers filed a Motion for Relief from Judgment pursuant to
The trial court held a hearing on the Motion for Relief from Judgment, at which the Housers’ counsel admitted that the Request for Trial De Novo was not timely filed. Furthermore, at the hearing, neither testimony nor sworn affidavits were presented; the parties’ counsel merely presented their arguments to the court. The trial court held that the untimely Request for Trial De Novo was not jurisdictional and that the standards of
On appeal, the appellants argue that the Motion for Relief from Judgment did not meet the requirements of
A showing of gross abuse of discretion is necessary on appeal to justify reversal of the lower court‘s ruling on a motion to vacate. N. Shore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962). Because the trial court granted relief, a higher standard is applied to overturn the decision than if the trial court had denied the motions. Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004).
A party against whom judgment has been entered pursuant to the rule requiring entry of judgment when the party fails to move for a trial de novo within twenty days of service of the arbitrator‘s decision is entitled to file a motion to vacate judgment under
Furthermore, “Excusable neglect must be proven by sworn statements or affidavits. Unsworn assertions of excusable neglect are insufficient.” Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004); see also Steinhardt v. Intercondominium Group, Inc., 771 So.2d 614, 614 (Fla. 4th DCA 2000). In Steinhardt, following two non-evidentiary hearings, the trial court denied a motion to dismiss a counterclaim finding that the counterclaimants’ delay in moving for substitution was the result of excusable neglect. 771 So.2d at 614. The trial court rejected counsel‘s arguments that the counterclaimants were required to submit evidence, not mere representations of counsel, to show excusable
In this case, only unsworn assertions of excusable neglect were presented. The attorneys in this case merely presented their arguments while not under oath, and the Motion for Relief from Judgment was not sworn or supported by affidavits. The Housers even concede that they did not present a sworn motion, affidavit, or testimony before the trial court. Therefore, in accordance with our decisions in Steinhardt and Zagorski, we conclude that this matter must be remanded to allow the Housers’ counsel the opportunity to file a sworn
We also find the cases cited by the Housers to be distinguishable. In Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983), this Court reversed the trial court‘s denial of the defendant‘s motion to set aside the default, finding that the movant had demonstrated (1) excusable neglect, (2) a meritorious defense, and (3) due diligence upon learning of the default. This Court stated, “Although each case must be evaluated on its own facts, clerical or secretarial error has usually been found to constitute excusable neglect where there has been no substantial prejudice to the plaintiff.” Id. at 743. However, in Perdue, the defendant‘s motion to set aside default was supported by various affidavits and testimony at a subsequent evidentiary hearing, both of which are lacking in this case. Id. Furthermore, in Somero v. Hendry General Hospital, 467 So.2d 1103, 1106 (Fla. 4th DCA 1985), where this Court stated that relief pursuant to
For these reasons, the trial court‘s order granting the Housers’ Motion for Relief from Judgment is reversed and remanded for the Housers’ counsel to file a sworn motion and for the trial court to conduct an evidentiary hearing on the issue of excusable neglect.
Reversed and Remanded.
GUNTHER, POLEN and HAZOURI, JJ., concur.