Not
final until disposition of timely filed motion for rehearing.
Appeal
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Cymonie S. Rowe, Judge; L.T. Case No.
50-2018-CA-008123-XXXX-MB.
Michael B. Feiler of Feiler & Leach, P.L., Coral Gables,
for appellant.
Timothy D. Kenison and William T. Viergever of Sonneborn
Rutter Viergever Burt & Lury, P.A., West Palm Beach, for
appellee.
Conner, J.
Fast
Funds, Inc. ("Appellant") appeals the trial
court's equitable distribution order and its order
denying Appellant's Florida Rule of Civil Procedure 1.530
motion for reconsideration. Because Appellant's timely
filed motion stated a colorable entitlement to relief based
on excusable neglect and was supported by an affidavit, we
reverse the trial court's order denying the motion and
remand for further proceedings.
Background
An
accident victim ("Petitioner") filed a petition for
declaratory judgment seeking to determine the equitable
distribution of a bodily injury award entered in his favor
through a personal injury arbitration. The respondents in the
proceeding were the medical providers who treated Petitioner,
as well as funding companies which provided monetary advances
to Petitioner based on his claim. According to the petition,
Appellant was one of the funding companies seeking repayment
and interest for the total amounts it loaned to Petitioner.
On July
6, 2018, Appellant was simultaneously served with the
petition and a separate notice that a hearing on the petition
was set for 8:30 a.m. on September 24, 2018. The hearing was
intended to be a final hearing, scheduled for a time period
during which the trial court typically conducted a short
hearing docket (referred to in many circuits as a
"uniform motion calendar" or "UMC
hearing," in which hearing time is limited to five
minutes per side and no evidence is taken).[1]
Appellant
filed its response to the petition, claiming entitlement to
the full balance of the amounts it loaned, superior to all
other expenses incurred by Petitioner, except for
attorney's fees.
A
hearing was held on the petition on September 24, 2018, as
noticed. The record does not include a transcript of the
hearing. Appellant did not appear for the hearing due to a
clerical error in calendaring the hearing. However, on the
day of the hearing, Appellant's counsel was copied on an
email from an attorney who had attended the hearing to the
trial court, alerting Appellant's counsel that the
hearing had occurred. Appellant's counsel called the
attorney who sent the email and was told that at the hearing,
the trial court orally announced that only the stakeholders
that appeared in court that morning would be considered in
the final decision rendered by the trial court.
On that
same day as the hearing and prior to the entry of any order
by the trial court, Appellant filed a motion for the trial
court to reconsider its purported ore tenus ruling
that only those stakeholders who appeared at the hearing
would be considered for any final decision. Appellant argued
that due to a clerical error, its counsel was not advised of
the hearing and had only learned the hearing occurred upon
receiving the email described above. Appellant requested that
the trial court reconsider its position regarding
stakeholders who did not appear before making any final
decision. Four days later, Appellant's motion was denied
"for failure to comply with Rules of Civil
Procedure."
Appellant
then filed an amended motion again seeking the same relief
but additionally claiming that an effort was made to contact
Petitioner's counsel the same day as the hearing.
Petitioner responded to the amended motion, disputing the
claim and contending that he would be prejudiced by requiring
a new hearing. It does not appear Appellant's amended
motion was ruled upon.
The
trial court entered its final order in the declaratory
action. The trial court acknowledged that court intervention
was sought to equitably distribute the proceeds of the
arbitration award. The trial court then named the three
providers that had attended the September 24, 2018 hearing,
one of which was Bethesda Hospital, Inc., the appellee in
this case, and found that, although all of the providers had
been properly noticed and served, they did not all choose to
attend. Based on the information presented, the trial court
then listed the distribution to which each of the attending
providers was entitled, in addition to a distribution for
...