MARINA ROSENFIELD v. JEXY PEREZ ZAYAS O/B/O DANIEL PICHS, JR. and DANA MARTINEZ

• Court: District Court of Appeal of Florida
• Decided: July 10, 2026
• Docket: 6D2025-1934
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2025-1934 Lower Tribunal No. 2025-DR-033192 _____________________________

MARINA ROSENFIELD,

Appellant,

v.

JEXY PEREZ ZAYAS o/b/o DANIEL PICHS, JR., and DANA MARTINEZ,

Appellees. _____________________________

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Lee County. Cynthia Pivacek, Judge.

July 10, 2026

STARGEL, J.

Marina Rosenfield (“Appellant”) appeals an order denying her Florida Rule

of Civil Procedure 1.540(b) motion for relief from a default final judgment. The

trial court entered the default final judgment due to Appellant’s failure to appear at

a noticed hearing. In a sworn statement attached to her rule 1.540(b) motion,

Appellant asserted that her failure to appear at the hearing was the result of a calendaring error.1 Appellant argues that the trial court erred in failing to hold an

evidentiary hearing after she filed a rule 1.540(b) motion, which articulated a

colorable and legally sufficient claim for relief based upon mistake, inadvertence,

and excusable neglect, and was supported by her sworn statement. We agree and

reverse the denial of the motion and remand for a hearing on 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.” Barrett v. Busser, 310 So. 3d 1016, 1017 (Fla. 2d DCA 2020) (citing

Paladin Props. v. Fam. Inv. Enters., 952 So. 2d 560, 562 (Fla. 2d DCA 2007)); see

Fla. R. Civ. P. 1.540(b)(1). As it pertains to attorneys and their support staff, it is

well established 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).”

Barrett, 310 So. 3d at 1017 (quoting Acosta v. Deutsche Bank Nat’l. Tr. Co., 88 So.

3d 415, 417 (Fla. 4th DCA 2012)); see Villas at Laguna Bay Condo. Ass’n v.

CitiMortgage, Inc., 190 So. 3d 200 (Fla. 5th DCA 2016); Suntrust Mortg. v.

Torrenga, 153 So. 3d 952, 954 (Fla. 4th DCA 2014); J.J.K. Int’l., Inc. v. Shivbaran,

985 So. 2d 66, 69 (Fla. 4th DCA 2008).

1 According to Appellant, she was perusing the trial court’s online record by happenstance on the day of the hearing when she discovered that her hearing had already taken place. Appellant filed the rule 1.540(b) motion nine days later.

2 At the time of the alleged calendaring error, Appellant was pro se. “In Florida,

pro se litigants are bound by the same rules that apply to counsel.” Stueber v.

Gallagher, 812 So. 2d 454, 457 (Fla. 5th DCA 2002); Hamza v. McLemore, 421 So.

3d 742, 744 (Fla. 5th DCA 2025) (“[A]ll parties before a court—whether represented

by counsel or representing themselves pro se—must fulfill the obligations imposed

by the rules of procedure, just as they are afforded the protections provided by the

rules.”). Nevertheless, when a movant raises a colorable and legally sufficient claim

for relief under rule 1.540(b), which is supported by a sworn statement, a trial court

abuses its discretion if it denies the motion without conducting an evidentiary

hearing. See Fawkes v. Wignal, 393 So. 3d 737, 741–42 (Fla. 4th DCA 2024);

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

Here, Appellant filed a rule 1.540(b) motion raising a colorable and legally

sufficient claim for relief based upon a calendaring error. In support of the motion,

Appellant attached her sworn statement attesting that she miscalendared the hearing

date. Despite this, the trial court failed to hold an evidentiary hearing on the matter.

On these facts, we conclude that the trial court abused its discretion by denying

Appellant’s motion without holding an evidentiary hearing. See Fawkes, 393 So. 3d

at 741–42; Oshana, 314 So. 3d at 312. Our holding here should not be construed as

requiring a hearing in every instance where a pro se litigant alleges a personal

calendaring error and files a rule 1.540(b) motion to excuse his or her failure to

3 appear at a final hearing. For example, there could be a situation where a pro se

litigant has abused the system and a judge determines, based on the totality of the

circumstances, that the motion does not raise a colorable claim and is instead an

abuse of process. Cf. In re Brewer, 442 F. App’x 430, 432 (11th Cir. 2011)

(“Defendant is not a novice at litigation in this Court or in the state court. Defendant

has elected to represent himself in whole or in part in five separate adversary

proceedings . . . [a]s such, Defendant is tasked with being familiar with and

complying with the orders of the Court. The fact that he is a pro se litigant does not

excuse his failure to do so.”). However, the trial judge made no such determination

in this case and there is nothing in the record to suggest that such a determination

would have been warranted, so a reversal is appropriate for an evidentiary hearing

on the motion. See Oshana, 314 So. 3d at 312–13 (“Accordingly, we reverse the

order denying Appellants’ motion and ‘remand for the trial court to hold an

evidentiary hearing.’ Novastar Mortg., Inc. v. Bucknor, 69 So. 3d 959, 960 (Fla. 2d

DCA 2011). ‘We note that nothing in this opinion should be construed as a

determination on the merits of the claims raised in [Appellants’] rule 1.540(b)

motion.’ Id.”). Therefore, we reverse and remand for further proceedings consistent

with this opinion.2

2 We note that the default judgment will remain in effect until the trial court holds such evidentiary hearing and appropriately disposes of Appellant’s motion.

4 REVERSED and REMANDED for further proceedings.

WHITE and MIZE, JJ., concur.

Robert David Malove, of The Law Office of Robert David Malove, P.A., Fort Lauderdale, for Appellant.

Jexy Perez Zayas, Cape Coral, pro se.

No Appearance for Appellee, Dana Martinez.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED