# Third District Court of Appeal

State of Florida

Opinion filed November 1, 2017

. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D17-71

Consolidated: 3D16-2901

Lower Tribunal Nos. 15-27834

, 14-16701

________________



### Saint Luc Jean Noel,

Appellant,

vs.



### James B. Nutter & Company,

Appellee.

_______________________________________________________



### Marie Ann Henry,

Appellant,

vs.



### Reverse Mortgage Solutions, Inc.,

Appellee.

Appeals from non-final orders from the Circuit Court for Miami-Dade

County, Antonio Marin

, Judge.

Morris | Barrow, LLP, and J. Wil Morris

, for appellants.Robertson, Anschutz & Schneid, P.L., and David Rosenberg and Jarrett

Cooper (Boca Raton)

, for appellees.

Before LAGOA, SALTER, and LINDSEY, JJ.

LAGOA, J.

The appellants in this consolidated appeal seek review of the trial court’s

denial of respective motions for relief from final judgments of attorney’s fees and

costs pursuant to Florida Rule of Civil Procedure 1.540(b). Because the trial court

abused its discretion in failing to vacate the relevant final judgments on the basis of

excusable neglect, we reverse and remand for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The underlying facts concern separate mortgage foreclosure actions. The

relevant factual circumstances of each case are as follows:

A. Case Number 3D16-2901

In Case Number 3D16-2901, appellee, Reverse Mortgage Solutions, Inc.

(“Reverse Mortgage”), filed a complaint to foreclose mortgage against appellant,

Marie Ann Henry (“Henry”), on June 26, 2014 (the “Henry case”). On March 30,

2016, Henry filed an answer, affirmative defenses, and counterclaims. Henry’s

counterclaims were based on her allegation that Reverse Mortgage failed to obtain

approval from the Secretary of Housing and Urban Development (“HUD”) prior to

commencing its foreclosure action. Shortly thereafter, on April 26, 2016, Reverse

Mortgage served Henry’s counsel with a motion for attorney’s fees pursuant to the

2“safe harbor” provision of section 57.105(4), Florida Statutes (2016). 1 Reverse

Mortgage asserted that the counterclaims were devoid of legal or factual support,

and therefore frivolous, within the meaning of section 57.105 because Reverse

Mortgage obtained approval from HUD on March 25, 2014, prior to commencing

suit. Henry failed to timely withdraw the counterclaims, and Reverse Mortgage

subsequently filed its motion for attorney’s fees.

1 Section 57.105, Florida Statutes, provides in relevant part:

(1) Upon the court’s initiative or motion of any party, the

court shall award a reasonable attorney’s fee, including

prejudgment interest, to be paid to the prevailing party in

equal amounts by the losing party and the losing party’s

attorney on any claim or defense at any time during a

civil proceeding or action in which the court finds that

the losing party or the losing party’s attorney knew or

should have known that a claim or defense when initially

presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to

establish the claim or defense; or

(b) Would not be supported by the application of thenexisting law to those material facts.

. . . .

(4) A motion by a party seeking sanctions under this

section must be served but may not be filed with or

presented to the court unless, within 21 days after service

of the motion, the challenged paper, claim, defense,

contention, allegation, or denial is not withdrawn or

appropriately corrected

.

3On September 26, 2016, the trial court entered an order granting Reverse

Mortgage entitlement to attorney’s fees. On that same date, the trial court issued a

standing order on attorney’s fees and costs (the “standing order”). The standing

order set forth deadlines for the parties’ submissions related to the determination of

an amount of fees. Specifically, the standing order provided that within ten days of

the moving party’s compliance with submissions, the non-moving party must

respond in writing to each item of costs and fees, and that a failure to timely object

shall constitute a waiver and approval of all fees and costs requested. The standing

order also provided that no hearing was required if the non-moving party failed to

object to the amounts sought. Henry failed to respond or object to Reverse

Mortgage’s submissions regarding the amounts of its fees, and on October 18,

2016, the trial court entered a final judgment of attorney’s fees and costs against

Henry and her counsel in an amount consistent with Reverse Mortgage’s

submissions.

After receiving a copy of the final judgment of attorney’s fees and costs,

Henry filed a verified motion for relief from final judgment of attorney’s fees and

costs pursuant to Florida Rule of Civil Procedure 1.540(b). Henry sought to vacate

the final judgment on the basis of excusable neglect and to be allowed the

opportunity to raise objections to the amount of fees sought by Reverse Mortgage.

Specifically, Henry’s counsel attested that “none of the deadlines outlined in the

4Standing Order were ever noted or calendared” by his assistants, for whom

calendaring is the sole responsibility in his office. Counsel attested that “but for

the innocent failure to calendar the deadlines contained in the Standing Order” he

would have objected to the time sheets submitted by Reverse Mortgage in support

of attorney’s fees. Counsel also stated that the Standing Order was filed on

October 4, 2016, “the day before offices began closing due to Hurricane Matthew”

and that this partially lead to the failure to calendar the deadlines outlined in the

standing order.

On November 28, 2016, the trial court denied Henry’s verified motion for

relief from final judgment of attorney’s fees and costs, finding that “there was no

establishment of excusable neglect.” Henry appeals from the trial court’s order

denying her motion for relief from final judgement of attorney’s fees and costs.

B. Case Number 3D17-71 2

In Case Number 3D17-71, appellee, James B. Nutter & Co. (“Nutter”), filed

a complaint to foreclose mortgage against appellant, Saint Luc Jean Noel (“Noel”),

on November 30, 2015 (“Noel case”). Noel was represented in the foreclosure

action by the same counsel as Henry. 3 As he did in the Henry case, Noel’s counsel

2 As these cases were consolidated for appellate purposes on the basis that the

factual and procedural histories of the two cases were substantially similar, we also

include a brief description of the underlying proceedings in Case Number 3D17-

71.

3 Nutter and Reverse Mortgage were also represented by the same counsel.

5filed counterclaims based upon a factual allegation that Nutter failed to obtain

approval from HUD prior to commencing its foreclosure action. Nutter served

Noel’s counsel with a motion for attorney’s fees pursuant to the “safe harbor”

provision of section 57.105(4), alleging entitlement to attorney’s fees on the basis

that it obtained approval from HUD prior to commencing suit, and therefore

Noel’s counterclaims were devoid of factual or legal support. The counterclaims

were not timely withdrawn, and Nutter filed its motion with the trial court.

On September 26, 2016, the trial court entered an order granting Nutter

entitlement to attorney’s fees. On that same day, the trial court also issued a

standing order on attorney’s fees and costs which contained the same deadlines as

those set forth in the standing order issued in the Henry case. Noel failed to

respond or object to Nutter’s submissions regarding the amount of its fees, and on

November 7, 2016, the trial court entered a final judgment of attorney’s fees and

costs against Noel and his counsel in an amount consistent with Nutter’s

submission.

Noel subsequently filed a verified motion for relief from final judgment of

attorney’s fees and costs, seeking to vacate the final judgment and an opportunity

to raise objections to the amount of attorney’s fees sought. Noel’s counsel made

the same allegations of excusable neglect that he made in the Henry case

—

attesting that “none of the deadlines outlined in the Standing Order were ever

6noted or calendared by the undersigned counsel’s office,” and that the failure to

calendar the deadlines was partially because the standing order was sent during

preparations for Hurricane Matthew. Following a hearing, the trial court entered

an order on December 12, 2016, denying Noel’s motion for relief from final

judgment of attorney’s fees. Noel appeals from the trial court’s order denying his

motion for relief from final judgement of attorney’s fees.

II. STANDARD OF REVIEW

The denial of a motion for relief from final judgment under Florida Rule of

Civil Procedure 1.540(b) is reviewed for an abuse of discretion. See Ocwen Loan

Servicing, LLC v. Brogdon

, 185 So. 3d 627, 629 (Fla. 5th DCA 2016); SunTrust

Mortg. v. Torrenga

, 153 So. 3d 952, 953 (Fla. 4th DCA 2014); Acosta v. Deutsche

Bank Nat’l Tr. Co.

, 88 So. 3d 415, 417 (Fla. 4th DCA 2012).

III. ANALYSIS

The appellants and their counsel sought relief under rule 1.540(b), which

provides in relevant part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly

Discovered Evidence; Fraud; etc. On motion and upon

such terms as are just, the court may relieve a party or a

party’s legal representative from a final judgment,

decree, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect

.

. . .

7Rule 1.540(b)(1) “‘envisions an honest mistake made during the regular course of

litigation, including those that result from oversight, neglect, or accident.’” Ocwen

Loan Servicing

, 185 So. 3d at 629 (quoting Paladin Props. v. Family Inv. Enters.

,

952 So. 2d 560, 562 (Fla. 2d DCA 2007)). “Excusable neglect is found ‘where

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.’”

Elliott v. Aurora Loan Servs. LLC

, 31 So. 3d 304, 307 (Fla. 4th DCA 2010)

(quoting Somero v. Hendry Gen. Hosp.

, 467 So. 2d 1103, 1106 (Fla. 4th DCA

1985)). Where a failure to act is the result of clerical or secretarial error, excusable

neglect is established under rule 1.540(b). See Ocwen Loan Servicing

, 185 So. 3d

at 630 (finding that counsel’s absence from case management conference

constituted excusable neglect where firm’s clerk misplaced order setting

conference); SunTrust Mortg.

, 153 So. 3d at 954 (“[T]he attorney’s unintentional

absence in the instant case due to inadvertent calendaring is the type of mistake

excused by Florida Rule of Civil Procedure 1.540(b), as well as judicial

precedent.”); J.J.K. Int’l, Inc. v. Shivbaran

, 985 So. 2d 66, 68 (Fla. 4th DCA 2008)

(holding that defense counsel’s failure to appear at hearing was excusable neglect

where secretary accidentally identified the hearing as cancelled); Wilson v.

Woodward

, 602 So. 2d 547, 549 (Fla. 2d DCA 1992) (finding plaintiff was entitled

8to rule 1.540(b) relief from judgment where counsel’s failure to attend hearing was

due to secretary’s failure to calendar hearing).

“‘Excusable neglect must be proven by sworn statements or affidavits.’”

Elliott

, 31 So. 3d at 307 (quoting Geer v. Jacobsen

, 880 So. 2d 717, 720 (Fla. 2d

DCA 2004)). In this case, counsel for both Henry and Noel provided affidavits

explaining the clerical mishap that led to counsel failing to comply with the

deadlines set forth in the standing order. Specifically, counsel for both Henry and

Noel attested that the calendaring responsibility in his office lies solely with his

assistants, and that in this instance, his assistants failed to calendar the deadlines

set forth in the relevant standing orders. Moreover, office preparations for

Hurricane Matthew contributed to the assistants’ failure to follow normal office

procedure and calendar the deadlines. Counsel also attested that but for the failure

to calendar the deadlines, he would have objected to the time sheets submitted by

Reverse Mortgage and Nutter. These undisputed facts constitute the type of

secretarial error or breakdown in normal office procedure, which constitute

excusable neglect pursuant to rule 1.540(b). See Carter, Hawley, Hale Stores, Inc.

v. Whitman

, 516 So. 2d 83, 83-84 (Fla. 3d DCA 1987) (holding that neglectful, but

understandable breakdown in defendant’s established office practice that resulted

in the complaint being lost on the desk of general counsel constituted excusable

neglect).

9III. CONCLUSION

Because the failure to comply with the deadlines set forth in the standing

orders was the result of excusable neglect, we find that the trial court abused its

discretion in denying the respective motions for relief from final judgment of

attorney’s fees and costs. On remand, Henry and Noel shall be given an

opportunity to respond and object to Reverse Mortgage’s and Nutter’s submissions

regarding attorney’s fees in accordance with the terms of the standing orders. 4

Reversed and remanded for further proceedings.

4 We decline to address any arguments directed toward the merits of the underlying

final judgments of attorney’s fees and costs. The law is clear that an appeal from

an order denying a motion to vacate under rule 1.540(b) does not encompass the

merits of the final judgment sought to be vacated or any other judgment. See

Troiano v. Tizon

, 632 So. 2d 251, 252-53 (Fla. 3d DCA 1994); Shields v. Flinn

, 528 So. 2d 967, 968 (Fla. 3d DCA 1988).

10