Collins Asset Group v. Lee , 217 So. 3d 1066 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
COLLINS ASSET GROUP, LLC,
Appellant,
v. Case No. 5D15-1544
LUISA LEE,
Appellee.
________________________________/
Decision filed June 17, 2016
Appeal from the Circuit Court
for Volusia County,
Sandra C. Upchurch, Judge.
Mark E. Pollack, of Pollack & Rosen, P.A.,
Coral Gables, for Appellant.
No Appearance for Appellee.
PER CURIAM.
AFFIRMED.
BERGER and WALLIS, JJ., concur.
LAMBERT, J., concurring specially with opinion.
LAMBERT, J., concurring specially. 5D15-1544
Appellant filed a one-count complaint against Appellee, seeking money damages
for the non-payment of a promissory note. Appellee failed to respond to the complaint,
and a clerk’s default was entered against her upon Appellant’s motion. Appellant took no
further action and the case sat dormant for approximately four months until the trial judge
entered an order directing Appellant to file a status report within thirty days, if Appellant
had not otherwise noticed the case for trial. The order was mailed directly to the attorney
who had filed the motion for default and contained a caveat that an unexcused failure to
comply with the order could lead to sanctions, including dismissal of the action.
Appellant or, more particularly, Appellant’s counsel did not comply with this order.
The trial court thereafter entered the order on appeal, which dismissed the entire action.
This final order was mailed directly to the attorney who filed the motion for default.
Eight days after this final order was rendered, Appellant, now through the attorney
who filed the complaint,1 filed an unverified “Motion for Rehearing and/or Motion for Relief
from Order,” unaccompanied by affidavits, arguing excusable neglect for failing to
respond to the order to file a status report.2 In this motion, counsel basically states that:
(1) the case should not be dismissed for lack of prosecution; (2) the court or the clerk of
court sent the order to a different attorney in the firm; (3) although the law firm received
the order, counsel who filed the rehearing motion had not seen it; and (4) the case had
1 The attorney who filed the complaint and the attorney who filed the motion for
default are partners in the same law firm.
2 Florida Rule of Civil Procedure 1.530 provides for the filing of motions for
rehearing and rule 1.540 pertains to motions to vacate final judgments or final orders.
Neither rule was cited in the motion.
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not been previously tasked to him to take action. Counsel also provided the untimely
status report. The trial judge denied the motion without a hearing.
Whether Appellant’s motion was brought pursuant to rule 1.530 or 1.540, the
abuse of discretion review standard applies. See Kelly v. BankUnited, FSB, 125 So. 3d
981, 981 (Fla. 4th DCA 2013) (stating a trial court’s denial of relief from a final judgment
for excusable neglect is reviewed for abuse of discretion). I conclude that the trial judge
did not abuse her discretion in denying the “Motion for Rehearing and/or Motion for Relief”
from the final order. “Excusable neglect must be proven by sworn statements or affidavits.
Unsworn assertions of excusable neglect are insufficient.” Greer v. Jacobsen, 880 So.
2d 717, 720 (Fla. 2d DCA 2004) (quoting DiSarrio v. Mills, 711 So. 2d 1355, 1356 (Fla.
2d DCA 1998)). Furthermore, unless the motion and supporting affidavits state a claim
of “colorable entitlement to relief,” an evidentiary hearing on the motion is not required.
Richards v. Crowder, 41 Fla. L. Weekly D1133 (Fla. 4th DCA May 10, 2016) (citations
omitted). Here, Appellant’s motion was insufficient as it was neither a sworn statement
nor accompanied by an affidavit. Additionally, the allegations in Appellant’s motion,
whether sworn to or not, and the facts described therein and set forth above do not
establish a colorable entitlement to relief.
Lastly, the final order of dismissal was imposed as a sanction. When such an order
is rendered due to an attorney’s failure to adhere to a filing deadline, the Florida Supreme
Court has adopted a set of six factors that trial courts should consider before dismissing
the action. See Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). The trial judge is
also required to make express findings as to these factors in the dismissal order or
judgment. Bank of N.Y. Mellon v. Depiero, 178 So. 3d 552, 553 (Fla. 1st DCA 2015). In
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the present case, the judge did not make these findings. However, Appellant waived this
potential issue by not raising it in the initial brief. See City of Miami v. Steckloff, 111 So.
2d 446, 447 (Fla. 1959) (“[P]oints covered by a decree of the trial court will not be
considered by an appellate court unless they are properly raised and discussed in the
briefs.”); Anheuser-Busch Cos. v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013)
(holding that an appellate court is “not at liberty to address issues that were not raised by
the parties” (citations omitted)).
Based on the foregoing, I agree that affirmance is appropriate.
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