DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TERRI BURKE,
Appellant,
v.
MICHELLE SOLES,
Appellee.
No. 4D20-1968
[August 18, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Stefanie C. Moon, Judge; L.T. Case No. DVCE 20-4131.
Jason H. Haber of Haber Blank, LLP, Fort Lauderdale, for appellant.
No appearance for appellee.
DAMOORGIAN, J.
Terri Burke challenges the trial court’s final judgment of injunction for
protection against repeat violence entered against her at the behest of
appellee Michelle Soles and the denial of her motion for rehearing of that
injunction. Concluding that the trial court erred in denying the motion for
rehearing without conducting a hearing, we reverse and remand for further
proceedings.
On July 23, 2020, appellee filed a petition for injunction for protection
against repeat violence against Burke. That same day, the trial court
issued a temporary injunction and set the matter for final hearing on
August 3, 2020. Due to the ongoing COVID-19 pandemic, the final hearing
was scheduled as a Zoom hearing. Following the scheduled Zoom hearing,
which Burke did not attend, the trial court issued the final judgment of
injunction for protection against repeat violence. Burke, acting pro se,
thereafter filed a timely motion for rehearing and to vacate or set aside the
final judgment. Therein, Burke asserted: “I was on Zoom it appears that
there may have been a tech[nological] problem. I was there.” The trial
court denied the motion for rehearing without conducting a hearing.
Florida Rule of Civil Procedure 1.540(b) authorizes a trial court to grant
a party relief from a final judgment for excusable neglect. Fast Funds, Inc.
v. Aventura Orthopedic Care Ctr.,
279 So. 3d 168, 171 (Fla. 4th DCA 2019).
Rule 1.530, which governs motions for rehearing, also authorizes a trial
court to grant a party relief for excusable neglect.
Id. (“[E]xcusable neglect
causing a party to fail to appear for a final hearing has been grounds for
granting relief under rule 1.530.”). “Excusable neglect” as a ground for
granting relief from judgment is found “[w]here inaction results from
clerical or secretarial error, reasonable misunderstanding, a system gone
awry or any other of the foibles to which human nature is heir.” Locke v.
Whitehead, 46 Fla. L. Weekly D1485, D1486 (Fla. 4th DCA June 23, 2021)
(alteration in original) (emphasis removed) (quoting Lloyd’s Underwriter’s
at London v. Ruby, Inc.,
801 So. 2d 138, 139 (Fla. 4th DCA 2001)).
If a motion sets forth a colorable entitlement to relief based on excusable
neglect, the trial court should either conduct a limited evidentiary hearing
on the motion or grant the requested relief. Waters v. Childers,
198 So. 3d
1007, 1008 (Fla. 1st DCA 2016) (“If the motion is facially sufficient and not
refuted by the record, the trial court should either hold an evidentiary
hearing on the motion or grant relief.”).
Here, Burke explained in the motion for rehearing that her failure to
appear for the Zoom hearing was due to technological problems. A claim
that the failure to appear was caused by technological difficulties is the
type of “system gone awry” that may constitute excusable neglect. Thus,
although Burke’s pro se motion does not specifically reference rule 1.540
or rule 1.530, and does not include the words “excusable neglect,” the
motion nonetheless suggests a case of excusable neglect. See Chancey v.
Chancey,
880 So. 2d 1281, 1282 (Fla. 2d DCA 2004) (“We realize that
[appellant’s] allegations in support of setting aside the default and
judgment are buried within numerous letters and motions and are not
artfully stated. But he is a pro se litigant and his pleadings should be
liberally construed. At the least, [appellant’s] filings may suggest a case of
excusable neglect.” (internal citations omitted)). Accordingly, we reverse
the denial of the motion for rehearing and remand with instructions for
the trial court to either conduct a limited evidentiary hearing on the motion
or grant the requested relief.
Reversed and remanded.
LEVINE and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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