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Fast Funds, Inc. v. Aventura Orthopedic Care Center

Florida Court of Appeals, Fourth District

September 18, 2019

FAST FUNDS, INC., Appellant,

         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.


         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 ...

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