Opinion
Case No. 2D19-1744
08-07-2020
Richard Michael BARRETT, Appellant, v. Elizabeth C. BUSSER, Appellee.
Walter C. Thomas, Jr. of Walter C. Thomas, Jr., P.A., Lakeland, for Appellant. Elizabeth C. Busser, pro se.
Walter C. Thomas, Jr. of Walter C. Thomas, Jr., P.A., Lakeland, for Appellant.
Elizabeth C. Busser, pro se.
KELLY, Judge. Richard Michael Barrett appeals a final judgment of injunction for protection against stalking entered in favor of Elizabeth C. Busser. Because the trial court failed to conduct an evidentiary hearing on Mr. Barrett's verified motion for reconsideration and rehearing before denying the motion, we reverse and remand for further proceedings.
Ms. Busser filed a petition seeking an injunction for protection against stalking. The trial court entered a temporary injunction and a hearing was scheduled for July 25, 2018. At that hearing, Mr. Barrett's counsel requested a continuance and the case was set for a status hearing on October 25, 2018. At the October 25 hearing, the case was again continued and set for a status hearing on January 10, 2019. Counsel was unable to attend the January 10 hearing and another attorney appeared in his stead. At that time, the case was set for a final hearing on April 16, 2019. When counsel appeared at the noticed hearing without his client, the trial court entered the ten-year injunction in favor of Ms. Busser. Counsel requested a continuance but his request was denied.
Counsel timely filed a verified motion for reconsideration and rehearing of the final judgment. In his motion, counsel asserted that he advised Mr. Barrett not to attend the April 16 hearing based on his mistaken belief that it was a status hearing from which Mr. Barrett was excused. Counsel explained that the case had been continued and set for status on several prior occasions because of a pending related criminal matter. When counsel was informed of the April 16 court date, he mistakenly placed it on his personal calendar as a status hearing because the criminal matter had not been resolved. The trial court denied the motion.
Florida Rule of Civil Procedure 1.540(b) authorizes a trial court to grant a party relief from a final judgment for mistake, inadvertence, surprise, or excusable neglect. Paladin Props. v. Family Inv. Enters., 952 So. 2d 560, 562 (Fla. 2d DCA 2007) (stating that rule 1.540 "envisions an honest mistake made during the regular course of litigation, including those that result from oversight, neglect, or accident"). The "claim that a failure to appear due to a calendaring or clerical error is the type of 'excusable neglect' or 'mistake' that warrants relief under rule 1.540(b) is well-supported in Florida law." Acosta v. Deutsche Bank Nat'l Tr. Co., 88 So. 3d 415, 417 (Fla. 4th DCA 2012) (citing J.J.K. Int'l, Inc. v. Shivbaran, 985 So. 2d 66, 68-69 (Fla. 4th DCA 2008) ); see also SunTrust Mortg. v. Torrenga, 153 So. 3d 952, 954 (Fla. 4th DCA 2014) ("[T]he attorney's unintentional absence ... due to inadvertent calendaring is the type of mistake excused by Florida Rule of Civil Procedure 1.540(b), as well as judicial precedent."). We review a trial court's ruling on a motion for relief from judgment under rule 1.540(b) for an abuse of discretion. See SunTrust Mortg., 153 So. 3d at 953.
Here, Mr. Barrett's counsel explained in his sworn motion for rehearing the circumstances that led to his error in calendaring the April 16, 2019, final hearing as a status hearing at which Mr. Barrett need not appear. Because the motion set forth a colorable claim that excusable neglect occurred, we conclude the trial court abused its discretion in denying his motion without a hearing. See Bayview Loan Servicing, LLC v. Dzidzovic, 249 So. 3d 1265, 1267-68 (Fla. 2d DCA 2018) ("Where a motion under rule 1.540(b) sets forth a 'colorable entitlement to relief,' the trial court should hold an evidentiary hearing to determine whether such relief should be granted." (quoting Cottrell v. Taylor, Bean & Whitaker Mortg. Corp., 198 So. 3d 688, 691 (Fla. 2d DCA 2016) )); Chancey v. Chancey, 880 So. 2d 1281, 1282 (Fla. 2d DCA 2004) (same). Accordingly, we reverse the order denying Mr. Barrett's motion for reconsideration and rehearing and remand to the trial court for further proceedings.
Reversed and remanded.
KHOUZAM, C.J. and CASE, Associate Senior Judge, Concur.