Fourth DCA
JD Restoration, Inc. v. Citizens Property Insurance Corporation
4th DCA
3/29/23, Judge Levine
Topics: Rule 1.540 Motion
JD Restoration (as the assignee of a homeowner) sued Citizens Property for breach of a homeowner’s insurance contract. The trial court issued an order scheduling a summary disposition and instructing the parties that they could file affidavits. JD Restoration did not appear at the hearing or file anything to be considered by the court, so the trial court entered summary disposition in Citizens’ favor.
JD Restoration then filed a Rule 1.540 motion asking the trial court to vacate the final disposition order. In the motion, JD Restoration’s attorney alleged that a paralegal at its law firm failed to calendar the summary disposition hearing, which constituted excusable neglect. At a hearing on the motion, Citizens did not quibble with the argument that a paralegal failing to calendar a hearing constitutes excusable neglect, but Citizens argued that JD Restoration’s failure to file anything in response to the order was unexplained. The trial court denied the motion to vacate, and JD appealed.
On appeal, Citizens argued that the trial court did not abuse its discretion in denying JD Restoration’s motion because JD had not presented a meritorious defense. The requirement that a movant demonstrate a meritorious defense only applies to defendants seeking to vacate a default judgment. Because JD showed excusable neglect and due diligence, the trial court abused its discretion. Citizens conceded error.
The DCA noted that it would be unreasonable to excuse the failure to calendar the hearing but not allow the assignee the opportunity to submit affidavits in opposition to summary disposition. The order setting the summary disposition hearing was the same order directing the parties to submit affidavits. “Logically, we can assume the reason why the assignee did not submit evidence in opposition of summary disposition was because the directive to do so was in the same order that the paralegal failed to calendar. Thus, if the assignee excusably missed the summary disposition hearing, its failure to submit affidavits was also excusable.” Reversed and remanded with instructions to grant the Rule 1.540 motion and hold another summary disposition hearing with opportunity for JD Restoration to submit affidavits.
https://supremecourt.flcourts.gov/content/download/864715/opinion/220140_DC13_03292023_ 100300_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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