final until disposition of timely filed motion for rehearing.
from non-final orders from the Circuit Court for Miami-Dade
County, Lower Tribunal Nos. 15-27834, 14-16701, Antonio
| Barrow, LLP, and J. Wil Morris, for appellants.
Robertson, Anschutz & Schneid, P.L., and David Rosenberg
and Jarrett Cooper (Boca Raton), for appellees.
LAGOA, SALTER, and LINDSEY, JJ.
appellants in this consolidated appeal seek review of the
trial court's denial of respective motions for relief
from final judgments of attorney's fees and costs
pursuant to Florida Rule of Civil Procedure 1.540(b). Because
the trial court abused its discretion in failing to vacate
the relevant final judgments on the basis of excusable
neglect, we reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
underlying facts concern separate mortgage foreclosure
actions. The relevant factual circumstances of each case are
Case Number 3D16-2901
Number 3D16-2901, appellee, Reverse Mortgage Solutions, Inc.
("Reverse Mortgage"), filed a complaint to
foreclose mortgage against appellant, Marie Ann Henry
("Henry"), on June 26, 2014 (the "Henry
case"). On March 30, 2016, Henry filed an answer,
affirmative defenses, and counterclaims. Henry's
counterclaims were based on her allegation that Reverse
Mortgage failed to obtain approval from the Secretary of
Housing and Urban Development ("HUD") prior to
commencing its foreclosure action. Shortly thereafter, on
April 26, 2016, Reverse Mortgage served Henry's counsel
with a motion for attorney's fees pursuant to the
"safe harbor" provision of section 57.105(4),
Florida Statutes (2016). Reverse Mortgage asserted that the
counterclaims were devoid of legal or factual support, and
therefore frivolous, within the meaning of section 57.105
because Reverse Mortgage obtained approval from HUD on March
25, 2014, prior to commencing suit. Henry failed to timely
withdraw the counterclaims, and Reverse Mortgage subsequently
filed its motion for attorney's fees.
September 26, 2016, the trial court entered an order granting
Reverse Mortgage entitlement to attorney's fees. On that
same date, the trial court issued a standing order on
attorney's fees and costs (the "standing
order"). The standing order set forth deadlines for the
parties' submissions related to the determination of an
amount of fees. Specifically, the standing order provided
that within ten days of the moving party's compliance
with submissions, the non-moving party must respond in
writing to each item of costs and fees, and that a failure to
timely object shall constitute a waiver and approval of all
fees and costs requested. The standing order also provided
that no hearing was required if the non-moving party failed
to object to the amounts sought. Henry failed to respond or
object to Reverse Mortgage's submissions regarding the
amounts of its fees, and on October 18, 2016, the trial court
entered a final judgment of attorney's fees and costs
against Henry and her counsel in an amount consistent with
Reverse Mortgage's submissions.
receiving a copy of the final judgment of attorney's fees
and costs, Henry filed a verified motion for relief from
final judgment of attorney's fees and costs pursuant to
Florida Rule of Civil Procedure 1.540(b). Henry sought to
vacate the final judgment on the basis of excusable neglect
and to be allowed the opportunity to raise objections to the
amount of fees sought by Reverse Mortgage. Specifically,
Henry's counsel attested that "none of the deadlines
outlined in the Standing Order were ever noted or
calendared" by his assistants, for whom calendaring is
the sole responsibility in his office. Counsel attested that
"but for the innocent failure to calendar the deadlines
contained in the Standing Order" he would have objected
to the time sheets submitted by Reverse Mortgage in support
of attorney's fees. Counsel also stated that the Standing
Order was filed on October 4, 2016, "the day before
offices began closing due to Hurricane Matthew" and that
this partially lead to the failure to calendar the deadlines
outlined in the standing order.
November 28, 2016, the trial court denied Henry's
verified motion for relief from final judgment of
attorney's fees and costs, finding that "there was
no establishment of excusable neglect." Henry appeals
from the trial court's order denying her ...