18 Fla. L. Weekly Supp. 1083a
Online Reference: FLWSUPP 1811GALI
Insurance — Relief from judgment — Trial court abused its discretion in granting motion to vacate order of dismissal based on excusable neglect — Although there was record evidence to support finding that provider did not receive copy of dismissal order until insurer attached a copy of it to its motion to strike claim for fees and costs, this fact alone did not automatically warrant finding of excusable neglect sufficient to justify vacating final judgment — Additional findings that clerk failed to timely update its address records and that insurer failed to advise provider that there was no need for a final judgment were unsupported by record evidence
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ADVANCED CHIROPRACTIC AND REHABILITATION CENTER, CORP. d/b/a ADVANCED CHIROPRACTIC AND REHABILITATION CENTER (a/a/o AMERICO GALINDO), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-52048 (05). August 26, 2011.
QUASHED. Remanded for reinstatement of county court orders.
Circuit Court opinion on remand at FLWSUPP 2306GALI
OPINION
(EADE, Judge.) THIS CAUSE has been brought before this Court upon United Automobile Insurance Company’s appeal of an Order Awarding Attorney’s Fees and Costs and Expert Witness Fees subsequent to vacating a prior Order of Dismissal with Prejudice Case Settled and reissuing the order of dismissal with prejudice, pursuant to Florida Rule of Civil Procedure 1.540(b), and Advanced Chiropractic and Rehabilitation Center’s cross-appeal. This Court, having considered the parties’ briefs, the record on appeal, and being duly advised in premises, hereby finds and decides as follows:
On August 24, 2007, the trial court entered an Order of Dismissal with Prejudice Case Settled, noting within the Order that “the parties have amicably settled their differences.” The trial court added that it was “reserv[ing] jurisdiction on the issue of attorney’s fees and costs.”
On July 8, 2008, Appellee’s attorney filed an untimely motion for attorneys’ fees and costs.1 See Fla.R.Civ.P. 1.525 (“Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.”). In response, Appellant filed a motion to strike Appellee’s claim for attorney’s fees and costs, which was followed by Appellee’s motion for evidentiary hearing regarding Appellee’s entitlement to attorney’s fees, costs, and prejudgment interest on attorney’s fees.
In support of Appellee’s motion for fees and costs, Appellee’s attorney attached his affidavit explaining that his business moved to a new location July 1, 2007, and that he mailed a notice of address change to the clerk’s office on or about July 2, 2007, which he attached to his affidavit as Exhibit “1.” Appellee’s attorney went on to explain that he never received a copy of the trial court’s Order of Dismissal with Prejudice Case Settled from the clerk’s office, but instead received a faxed copy of the Order on July 21, 2008 from Appellant attached to its motion to strike Appellee’s motion for attorney’s fees and costs. Appellee’s attorney testified that the parties had settled the case on or about August 21, 2007, and that Appellant, through its attorney, had stipulated that Appellee was entitled to recover its reasonable attorney’s fee and costs, along with a specified amount in medical bills and prejudgment interest.
Thereafter, Appellee moved to vacate the Order of Dismissal with Prejudice Case Settled pursuant to Florida Rules of Civil Procedure 1.540(b) and 1.080(a). Subsequently, Appellee filed an unverified motion to supplement its motion to vacate the Order of Dismissal with Prejudice Case Settled asserting various facts in support of its motion to vacate explaining Appellee was entitled to relief based upon mistake, inadvertence, surprise or excusable neglect. In support, Appellee attached a second affidavit from a legal assistant employed at Appellee’s attorney’s law office, who swore she spoke to a legal assistant at Appellant’s attorney’s office, on or about September 6, 2007, and that the Appellant’s attorney’s legal assistant claimed her attorney had misplaced Appellee’s proposed Agreed Final Judgment for Plaintiff. In response, Appellee’s attorney’s legal assistant faxed another copy to Appellant’s attorney’s office, requesting an answer as soon as possible, so that the final judgment could be filed with the trial court.
On August 11, 2008, the trial court conducted an “evidentiary hearing” on the parties’ respective motions. Appellee’s attorney began arguing his motion for attorney’s fees and costs to the court and noted that he intended to testify along with a clerk from the Broward County Courthouse. At the hearing, Appellee’s attorney argued case law and answered the trial court’s questions without being placed under oath on the record.
Thereafter, Appellee’s attorney called an employee at the clerk’s office who discussed what action the clerk would take upon receiving a pleading as being “undeliverable.” This witness too was not placed under oath prior to testifying.
Afterwards, Appellee’s attorney argued additional facts and reasons for the trial court to find “excusable neglect” and filed one exhibit in support. The exhibit, certified by the Broward County Clerk’s Office, showed Appellee’s attorney’s name, current address, phone number, and a “last update” of October 24, 2007. The document was not supported by a sworn affidavit or sworn testimony, explaining its relevance.
At the close of the hearing, the trial court reserved ruling on the parties’ respective motions. Subsequently, on or about August 21, 2008, the trial court granted Appellee’s motion to vacate the order of dismissal, denied Appellant’s motion to strike Appellee’s claim for fees and costs, and vacated its prior order of dismissal with prejudice, finding excusable neglect, pursuant to Florida Rule of Civil Procedure 1.540(b).2 The trial court noted that while the failure of an attorney to receive a copy of an order or judgment does not automatically result in a finding of excusable neglect, the clerk’s office’s failure to timely update its address records, coupled with the Appellant’s failure to advise the Appellee of the lack of need for a final judgment, justified vacating its prior judgment of dismissal pursuant to Florida Rule of Civil Procedure 1.540(b). The trial court added, “The Court this day DISMISSES this case with prejudice and finds that the [Appellee] is entitled to an award of fees and costs,” setting an evidentiary hearing on Appellee’s motion for fees and costs.
“A trial court has broad discretion in determining whether to grant relief from judgment.” See Kroner v. Singer Asset Finance Co., LLC, 814 So. 2d 454, 456 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2759a] (citations omitted). Likewise, appellate courts are limited to reviewing orders on such motions for abuse of discretion. Id. (citing Bakalarz v. Luskin, 560 So. 2d 283, 285 (Fla. 4th DCA 1990); Schwab & Co. v. Breezy Bay, Inc., 360 So. 2d 117, 118 (Fla. 3d DCA 1978) (“there must be a showing of a gross abuse of discretion”).
Moreover, in order for a party to obtain relief under Florida Rule of Civil Procedure 1.540(b), the movant must tender sufficient evidence to invoke the court’s jurisdiction. See Rude v. Golden Crown Land Dev. Corp., 521 So. 2d 351, 353 (Fla. 2d DCA 1988). Because this evidence is inherently factual, the motion must be verified or supported by affidavit or sworn testimony. See Halpern v. Houser, 949 So. 2d 1155, 1157 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D599a]. An unsworn or unsupported motion is insufficient. Id. at 1157. Moreover, a trial court is precluded from making factual determinations based upon an attorney’s unsworn statements in the motion or at a hearing on the motion. Lazcar Int’l, Inc. v. Caraballo, 957 So. 2d 1191, 1192 (Fla. 3d DCA 2006) [32 Fla. L. Weekly D769a] (“Unsworn argument of counsel is insufficient to satisfy the due diligence element of a motion to vacate a default final judgment.”) (citations omitted); see also DiSarrio v. Mills, 711 So. 2d 1355, 1357 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D1506a] (“Argument by counsel who is not under oath is not evidence.”) (citations omitted); Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So. 2d 838, 841 (Fla. 2d DCA 1994).
There is record evidence to support the trial court’s finding that the Appellee failed to receive a copy of the Court’s Order of Dismissal with Prejudice Case Settled and that Appellee received it for the first time from Appellant’s counsel attached to its motion to strike Appellee’s claim for fees and costs. However, as the trial court noted in its August 21, 2008 Order, this fact alone does not automatically warrant a finding of excusable neglect to justify vacating a final judgment, pursuant to Florida Rule of Civil Procedure 1.540(b). See Shipp Corp. v. Charpilloz, 414 So. 2d 1122, 1124 (Fla. 2d DCA 1982) (“The failure of a party to take the required steps necessary to protect his own interest cannot, standing alone, be grounds to vacate judicially authorized acts, to the detriment of other innocent parties. The law requires certain diligence of those subject to it, and this diligence cannot be lightly excused.”); see also Bennett v. Halper, 248 So. 2d 522 (Fla. 3d DCA 1971); see generally Kash N’Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So. 2d 786, 789 (Fla. 2d DCA 1969).
There is no record “evidence,” however, to support the trial court’s additional findings that the Broward County Clerk failed to timely update its address records and that the Appellant failed to advise Appellee of the lack of need for the proposed final judgment. Accordingly, this Court holds that based upon the record evidence properly before the trial court, the trial court abused its discretion when it granted Appellee’s motion for relief from judgment.
It is hereby
ORDERED AND ADJUDGED that the August 21, 2008 Order Granting Plaintiff’s Motion to Vacate Order of Dismissal and Denying Defendant’s Motion to Strike Plaintiff’s Claim for Fees and Costs is REVERSED; the August 24, 2007 Order of Dismissal with Prejudice Case Settled is REINSTATED; the October 8, 2008 Order Awarding Attorney’s Fees and Costs and Expert Witness Fees is REVERSED; and Appellee’s cross-appeal for attorney’s fees and costs expended litigating the issue of entitlement is rendered moot.
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1The certificate of service certifies that the motion was mailed to opposing counsel on July 3, 2008.
2This Court notes, as Appellant asserts in its initial brief, that the Broward County Court Docket shows the Order Granting Plaintiff’s Motion to Vacate Order of Dismissal and Denying Defendant’s Motion to Strike Plaintiff’s Claim for Fees and Costs was docketed on August 21, 2008. It is apparent from the record on appeal that due to no fault of the parties, the clerk’s file is missing this document. Given that the contents and existence of the Order are verified by not only the comments section in the Broward County Court docketing system, the trial court’s comments at the October 8, 2008 hearing on attorney’s fees and costs, and not challenged, but argued by Appellee in its Response, this Court will treat the Order attached as Exhibit “D” in Appellant’s appendix to its Initial Brief as authentic for the purposes of this appeal.
