BARTON PROTECTIVE SERVICES, LLC, d/b/a ALLIEDBARTON SECURITY SERVICES v. ISADORA REDMON, etc.

• Court: District Court of Appeal of Florida
• Decided: August 9, 2023
• Docket: 22-0373
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 9, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-373 Lower Tribunal No. 18-32373 ________________

Barton Protective Services, LLC, d/b/a AlliedBarton Security Services, et al., Appellants,

vs.

Isadora Redmon, etc., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Holland & Knight LLP, and Christopher N. Bellows, for appellants.

Ver Ploeg & Marino, and Michal Meiler; Obront Corey, PLLC, and Curt David Obront; Podhurst Orseck, P.A., Stephen F. Rosenthal and Christina H. Martinez, for appellee.

Before SCALES, LINDSEY and GORDO, JJ.

GORDO, J. Allied Universal and U.S. Security Associates, Inc., et al., (collectively,

“Allied”) appeal a final judgment awarding $10,500,00.00 to Isadora Redmon

(“Redmon”), as Personal Representative of the Estate of Andrew Darrell

Griffin, Jr. (“Griffin”). We have jurisdiction. Fla. R. App.

P. 9.030(b)(1)(A). Because Allied’s motion for relief raised a colorable

entitlement to relief, the trial court was required to hold an evidentiary

hearing. We therefore reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Redmon sued Allied for damages in connection with the shooting and

death of Griffin at an apartment complex in Liberty City, Florida. Redmon

alleged that Allied was required to provide security services at the apartment

complex on the night of the shooting and as a result, should pay damages

for Griffin’s death. Allied answered and raised multiple affirmative defenses.

The parties requested a jury trial. Instead, the trial court referred the case

to nonbinding arbitration under Florida Rule of Civil Procedure 1.820.

The arbitration took place on November 2, 2021. On November 30,

2021, the arbitrator served the decision by email to the parties. The email

was sent to Allied’s three attorneys of record and two paralegals. Upon

receiving the email, the Allied attorneys spoke to each other and decided

they would proceed with a trial on the merits. Each lawyer believed the other

2 would calendar the deadline for a motion for trial de novo and file the motion.

The due date was not calendared.

Pursuant to Florida Rule of Civil Procedure 1.820(h), the due date for

the motion for trial de novo was twenty days after service of the arbitration

decision—here, December 20, 2021. On December 21, 2021, after no

motion for trial de novo was filed by Allied, Redmon filed a motion for entry

of final judgment pursuant to Rule 1.820(h) and the nonbinding arbitration

decision. On December 22, 2021—prior to entry of any final judgment by

the trial court—Allied’s counsel filed a motion for trial de novo. On January

5, 2022—prior to entry of final judgment, Allied filed a motion for relief from

the nonbinding arbitration judgment pursuant to Florida Rules of Civil

Procedure 1.540, 1.820 and 1.090. Allied attached sworn affidavits by the

attorneys, averring the deadline was missed by two days due to excusable

neglect and since no final judgment had been entered, an enlargement of

time for filing a motion for trial de novo was permissible under Rule 1.090.

On January 26, 2022, the trial court heard the parties’ pending motions.

Allied argued it had raised a colorable claim of excusable neglect under

Rules 1.540 and 1.090 and was entitled to an evidentiary hearing. Redmon

argued that excusable neglect was not a basis to allow a late motion for trial

3 de novo or relief from a nonbinding arbitration decision or resulting judgment

and that a lawyer’s failure to calendar can never be excusable neglect.

The trial court denied Allied’s request for an evidentiary hearing finding

that the missed calendar deadline did not raise a colorable claim for

excusable neglect. The trial court then entered a $10,500,000.00 final

judgment against Allied and denied Allied’s motion for relief from nonbinding

arbitration judgment. This appeal followed.

STANDARD OF REVIEW

“A trial court’s denial of relief from judgment upon a showing of

excusable neglect, including relief pursuant to Florida Rule of Civil Procedure

1.530, is reviewed for an abuse of discretion.” Fast Funds, Inc. v. Aventura

Orthopedic Care Ctr., 279 So. 3d 168, 171 (Fla. 4th DCA 2019).

LEGAL ANALYSIS

We solely address the issue of whether Allied was entitled to an

evidentiary hearing. 1 Allied argues the trial court erred by failing to grant

Allied an evidentiary hearing on its motion for relief from the nonbinding

arbitration judgment. Redmon argues the trial court correctly ruled without

1 Because we are reversing the final judgment based on this ground, we expressly do not reach the other issues raised in this appeal. See Hill v. State, 535 So. 2d 354, 355 (Fla. 5th DCA 1988) (“No law of the case should be inferred from the fact that this opinion does not discuss the other issues raised on appeal.”).

4 an evidentiary hearing because Allied failed to demonstrate a colorable basis

of relief.

“Where a motion under rule 1.540(b) sets forth ‘a colorable entitlement

to relief,’ the trial court should conduct an evidentiary hearing to determine

whether such relief should be granted.” Cottrell v. Taylor, Bean & Whitaker

Mortg. Corp., 198 So. 3d 688, 691 (Fla. 2d DCA 2016) (citation omitted). “A

motion for relief from judgment should not be summarily [denied] without an

evidentiary hearing . . . .” Schleger v. Stebelsky, 957 So. 2d 71, 73 (Fla. 4th

DCA 2007) (citation omitted).

It is well-established Florida law that excusable neglect is found where

an inadvertent calendaring error results in an attorney’s failure to act. See

Noel v. James B. Nutter & Co., 232 So. 3d 1112, 1115–16 (Fla. 3d DCA

2017) (“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.’” (quoting Elliott v. Aurora

Loan Servs. LLC, 31 So. 3d 304, 307 (Fla. 4th DCA 2010))); Suntrust Mortg.

v. Torrenga, 153 So. 3d 952, 953 (Fla. 4th DCA 2014) (finding “the trial court

abused its discretion by denying SunTrust’s motion to vacate” because “the

attorney’s unintentional absence in the instant case due to inadvertent

calendaring is the type of mistake excused by Florida Rule of Civil Procedure

5 1.540(b), as well as judicial precedent”); Villas at Laguna Bay Condo. Ass’n,

Inc. v. CitiMortgage, Inc., 190 So. 3d 200, 202 (Fla. 5th DCA 2016) (“[A]

calendaring error can constitute excusable neglect where the attorney, and

not a secretary, commits the error.”); Madill v. Rivercrest Cmty. Ass’n, Inc.,

273 So. 3d 1157, 1161 (Fla. 2d DCA 2019) (“There’s no question that the

attorney’s oversight was the result of careless human error. But absent

something more, that’s exactly what excusable neglect is. We hold,

therefore, that the trial court abused its discretion by denying Madill’s motion

for an enlargement of time due to excusable neglect.”); J.J.K. Int’l, Inc. v.

Shivbaran, 985 So. 2d 66, 68 (Fla. 4th DCA 2008) (holding counsel’s failure

to appear for the special set hearing was excusable neglect where the

secretary accidentally marked the hearing as cancelled); Wilson v.

Woodward, 602 So. 2d 547, 549 (Fla. 2d DCA 1992) (reversing and

remanding because “the attorney presented uncontroverted evidence that

he failed to appear at the hearing because of a mistake and not because of

any willful and flagrant act.”); Suntrust Mortg. v. Torrenga, 153 So. 3d 952,

953 (Fla. 4th DCA 2014) (“Florida courts have a preference for deciding

cases on the merits of the claims rather than on a technicality.”).

We find Allied’s motion presents a colorable entitlement to relief based

on excusable neglect. Where such a claim is raised and contested, the trial

6 court abuses its discretion in failing to conduct an evidentiary hearing on the

motion. See Oshana v. Lopiano, 314 So. 3d 311, 312 (Fla. 3d DCA 2020)

(“Although we review a trial court’s ruling on motions for relief from judgment

for an abuse of discretion, once a party moving under rule 1.540(b) raises a

colorable entitlement to relief exercising that discretion requires holding an

evidentiary hearing.”). Accordingly, we reverse the entry of final judgment

and denial of the motion for relief and remand for an evidentiary hearing.

Reversed and remanded with instructions.