24 Fla. L. Weekly Supp. 79a
Online Reference: FLWSUPP 2401HEInsurance — Dismissal — Failure to appear for pre-trial conference — Motion to set aside order of dismissal based on excusable neglect should have been set for hearing where motion did not contain sworn statements or affidavits relative to the alleged excusable neglect and circumstances surrounding the p retrial conference appear to be in conflict — Prior order setting aside dismissal, which was entered without a hearing, is granted
COMPREHENSIVE PHYSICIAN SERVICES, a/a/o SAN HE, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 15-CC-028940, Division J. March 23, 2016. Honorable Gaston J. Fernandez, Judge. Counsel: H. Alexis Rosenberg, Rosenberg Law, P.A., Boca Raton, for Plaintiff. Diane Cassie Bermudez, Law Office of Aaron E. Leviten, Progressive PIP House Counsel, Maitland, for Defendant.
ORDER ON DEFENDANT’S MOTIONFOR RECONSIDERATION REGARDING ORDERSETTING ASIDE DISMISSAL
THIS MATTER came before the Court on February 2, 2016, on Defendant, PROGRESSIVE SELECT INSURANCE COMPANY’s Motion for Reconsideration Regarding Order Setting Aside Dismissal (“Motion”) filed on December 9, 2015. Having considered the Defendant’s Motion, Plaintiff’s Opposition to Defendant’s Motion, the argument of the parties, and applicable law; reviewed the court file; and being otherwise fully advised, the Court finds:
1. Defendant’s Motion seeks reconsideration of this Court’s November 18, 2015 Order Setting Aside Dismissal; specifically, “reconsideration as to the Court’s decision to rule on Plaintiff’s Motion without a hearing or allowing arguments in opposition to be presented.” See D.’s Mtn. for Reconsideration Regarding Order Setting Aside Dismissal ¶¶ 20-21 (Dec. 9, 2015).
2. On October 14, 2015, the Court entered an Order of Dismissal after neither party appeared for the October 13, 2015 Pre-Trial Conference in this matter.
3. On November 13, 2015, Plaintiff filed a Motion to Vacate Default seeking to have the Court’s October 14, 2015 Order of Dismissal set aside. Plaintiff’s Motion argued that the “default” should be vacated because of excusable neglect. The Motion indicated that “Counsel’s office inadvertently made a mistake in calendaring the appearance for the Pre Trial Conference” and that because of “the inadvertent clerical error in calendaring the Pre Trial Conference undersigned counsel’s office did not appear at the scheduled Pre Trial Conference.” See P.’s Mtn. to Vacate Default ¶¶9-10 (Nov. 13, 2015). The Plaintiff’s Motion contains an Affidavit from Paul Christian relative to the merit of Plaintiff’s claim; however, the Motion does not contain any sworn statements or affidavit relative to excusable neglect.
4. The Court entered an Order Setting Aside Dismissal on November 18, 2015, without holding a hearing on Plaintiff’s November 13, 2015 Motion.
5. The Court has “inherent authority to reconsider any of its nonfinal rulings, and, if it deems it appropriate, to alter or retract them.” Hunter v. Dennies Contracting Co., Inc., 693 So. 2d 615, 616 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D796b].
6. A motion seeking to set aside an order on the basis of excusable neglect must “show[ ] both a legal excuse . . . and a meritorious defense.” Disarrio v. Mills, 711 So. 2d 1355, 1356 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D1506a]. “Excusable neglect must be proven by sworn statements or affidavits.” Id.
7. Plaintiff’s Motion to Vacate Default did not contain sworn statements or affidavits relative to the excusable neglect alleged. Additionally the circumstances surrounding the Pre-Trial Conference appear to be in conflict, which requires the Court to make a finding relative to the existence of excusable neglect in this matter. As such, Plaintiff’s Motion should have been set for hearing.
Based on the foregoing, it is therefore ORDERED AND ADJUDGED
1. Defendant’s Motion for Reconsideration Regarding Order Setting Aside Dismissal is GRANTED;
2. The Order Setting Aside Dismissal dated November 18, 2015 is vacated;
3. The Motion to Vacate Default filed by Plaintiff in this matter, upon which the Order Setting Aside Dismissal was based, shall be set for hearing. The parties shall confer to schedule a hearing on Plaintiff’s Motion at a mutually agreeable time.
