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Noel v. James B. Nutter & Co.

Florida Court of Appeals, Third District

November 1, 2017

Saint Luc Jean Noel, Appellant,
v.
James B. Nutter & Company, Appellee. Marie Ann Henry, Appellant,
v.
Reverse Mortgage Solutions, Inc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeals from non-final orders from the Circuit Court for Miami-Dade County, Lower Tribunal Nos. 15-27834, 14-16701, Antonio Marin, Judge.

          Morris | Barrow, LLP, and J. Wil Morris, for appellants.

          Robertson, Anschutz & Schneid, P.L., and David Rosenberg and Jarrett Cooper (Boca Raton), for appellees.

          Before LAGOA, SALTER, and LINDSEY, JJ.

          LAGOA, J.

         The 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         The underlying facts concern separate mortgage foreclosure actions. The relevant factual circumstances of each case are as follows:

         A. Case Number 3D16-2901

         In Case 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).[1] 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.

         On 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.

         After 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.

         On 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 ...


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