Massoud v. Stonehenge Residents, Inc.—(J. Sleet; 2DCA; 1/20/23). Congratulations to a pro se litigant who actually won an appeal. A Pinellas County judge dismissed a civil small claims suit by Massoud for lack of prosecution after both parties failed to appear at a pretrial conference. Two days later, Massoud mailed a letter to the court that stated that he called three times during the 10 minutes prior to the hearing and was told each time that the case was dismissed. Mr. Massoud enclosed his record of outgoing calls from his mobile phone provider, stated that he had been denied due process, and asked for a “mistrial” related to the error in dismissing his case due to a “no show.” The trial court treated the letter as a motion to set aside judgment under Rule 1.540, Fla. R. Civ. P. and denied the motion. Massoud appealed. The DCA first observed that it was correct to treat the letter as a 1.540 motion to vacate based on caselaw stating that a motion to vacate based on excusable neglect is the proper way to challenge a dismissal or default for nonappearance when the party was disconnected from a remote proceeding due to a technical malfunction or some other reason beyond their control. If such a motion grants a colorable entitlement to relief, the court can either grant the motion or hold an evidentiary hearing; it cannot summarily deny the motion. Reversed and remanded for an evidentiary hearing.
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC