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. 5D 15

- 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 Pollac k & 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.2

LAMBERT, J., concurring specially. 5D15

- 1544
Appellant filed a one

- count complaint against Appellee, seeking money damages for the non

- payment of a pr o m i ssory note. Appellee failed to respond to the complaint,
and a clerk’s def ault was e ntered against her upon Appellant’s motion. Appellant took no further action and t he case sat dormant for approximately four months until the trial judge entered an order directing A ppellant to file a status report within thirty d ays , if Appellant
had not otherw ise noti c ed 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 unexc used failure to comply with the order coul d lead to sanctions, including dismissal of the action. Appel l ant 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 defaul t. 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 fail ing to respond to the order to file a status report. 2 In this motion, counsel basically states that: (1) the case should not be di smissed for lack of prosecution; (2) the court or the clerk of
court sent the order to a different attorney in t he firm; (3) although the law fi rm received the order, counsel who filed the rehearing mot i on 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.3

not been previously tasked to him to take action. C ounsel 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. Bank U nited, FSB , 125 So. 3 d 981, 981 (Fla. 4th DCA 2013) ( stating a trial court’s denial of relief fro m a final judgment for e xcus able neglect is reviewed for abuse of discretion). I conclude that the trial judge did not abuse her discretion in denying the “M otion for R ehearing and/or Motion for R elief ” from the final order

. “E x cusable negle c t must be pr oven by swor n statements or affidavits. Unsworn assertions of excusable neglect are insufficient.” Greer v. Jaco b sen , 880 So. 2d 717, 720 (Fla. 2d DCA 2004) (quoting DiSar r io v. Mills , 711 So. 2d 1355, 1356 (Fla. 2d DCA 1998)). Furthermore, unless the m otion 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 moti on was insufficient as it was neither a sworn statement nor accompanied by an affidavit. Additionally, t he 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, t he 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 deadlin e, 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 o r judgment. Bank of N.Y. Mellon v. Depiero , 178 So. 3d 552, 553 (Fla. 1st DCA 2015). In4

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. S t e ckloff , 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

- B usch Co s . v. Staples , 125 So. 3d 309, 312 (Fla. 1st DCA 2013) (holding that an appellate co urt 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

.