Dyck-O'Neal, Inc. v. Smith

District Court of Appeal of Florida

Dyck-O'Neal, Inc. v. Smith

199 So. 3d 1136, 2016 Fla. App. LEXIS 14278, 2016 WL 5342439

District Court of Appeal of Florida·Decided September 23, 2016·No. 5D15-3154·Published

Opinion

PER CURIAM.

In the underlying suit for a deficiency judgment filed by Dyck-O’Neal, Inc., the trial court entered a dismissal of the action based on the parties’ failure to submit a joint status report as ordered by the trial court. Dyck-O’Neal, Inc., filed a motion to vacate the dismissal, arguing that it had no record of receiving the order to file a joint status report and that, pursuant to Florida Rule of Civil Procedure 1.540, the trial court should grant the requested relief based on excusable neglect. The motion further alleged that the statute of limitations had expired and that refiling the action was prohibited.

The trial court denied the motion to vacate without holding an evidentiary hearing to give Dyck-O’Neal, Inc., the opportunity to establish excusable neglect under the rule. Dyck-O’Neal, Inc., contends this was error. Based on the record before us, we agree, reverse the order under review, and remand this case for an evidentiary hearing.

REVERSED and REMANDED.

LAWSON, C.J., SAWAYA and EVANDER, JJ., concur.

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PER CURIAM.

In the underlying suit for a deficiency judgment filed by Dyck-O’Neal, Inc., the trial court entered a dismissal of the action based on the parties’ failure to submit a joint status report as ordered by the trial court. Dyck-O’Neal, Inc., filed a motion to vacate the dismissal, arguing that it had no record of receiving the order to file a joint status report and that, pursuant to Florida Rule of Civil Procedure 1.540, the trial court should grant the requested relief based on excusable neglect. The motion further alleged that the statute of limitations had expired and that refiling the action was prohibited.

The trial court denied the motion to vacate without holding an evidentiary hearing to give Dyck-O’Neal, Inc., the opportunity to establish excusable neglect under the rule. Dyck-O’Neal, Inc., contends this was error. Based on the record before us, we agree, reverse the order under review, and remand this case for an evidentiary hearing.

REVERSED and REMANDED.

LAWSON, C.J., SAWAYA and EVANDER, JJ., concur.

Dyck-O'Neal, Inc. v. Smith, 199 So. 3d 1136, 2016 Fla. App. LEXIS 14278, 2016 WL 5342439 (Fla. Ct. App. 2016).

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199 So. 3d 1136 (Dyck-O'Neal, Inc. v. Smith) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.