LUMENES PIERRE, Appellant, v. AMERICAN SECURITY

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LUMENES PIERRE,

Appellant,

AMERICAN SECURITY INSURANCE COMPANY,

Appellee.

No. 4D21-2105

[June 22, 2022]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Nicholas Richard Lopane, Judge; L.T. Case No. CACE17-

006500.

Jonathan Korin and David J. Mannering of Korin Law P.A., Miami, for

appellant.

Jay Kim, Anisha Atchanah, and Candace Phillips of Kim Vaughan

Lerner, LLP, Fort Lauderdale, for appellee.

EN BANC

GROSS, J.

The trial court dismissed a plaintiff’s claim because his attorney failed

to attend a case management conference. The plaintiff moved to set aside

the dismissal based on mistake, inadvertence, or excusable neglect, which

the trial court denied. This appeal ensued. We reverse because the trial

court abused its discretion in refusing to set aside the dismissal.

We consider this case en banc to recede from the language in Arriechi

v. Bianchi, 318 So. 3d 4 (Fla 4th DCA 2021), that imposes an incorrect test

to a plaintiff’s effort to set aside a dismissal.

Lumenes Pierre, the plaintiff below, was insured with appellee

American Security Insurance Company. He sued American Security

claiming that it failed to pay all the damages to which he was entitled for

a property loss.

On December 3, 2019, the trial court scheduled a case management

conference for February 3, 2020, pursuant to Florida Rule of Civil

Procedure 1.200.

On February 3, 2020, the plaintiff’s counsel failed to appear at the case

management conference. The court dismissed the case with a form order

upon which the court wrote: “Plaintiff failed to appear. This case is

DISMISSED.” At the bottom of the order, the court checked the option

indicating that copies of the order were furnished “In Open Court.” The

other two options: “By Mail” and “By E-mail/Efiling Portal” were not

checked.

On March 11, 2020, the plaintiff’s attorney moved inter alia to vacate

and/or set aside the February 3, 2020 order of dismissal pursuant to

Florida Rule of Civil Procedure 1.540(b). The plaintiff detailed that his

counsel failed to attend the case management conference due to a clerical

scheduling error.

On March 13, 2020, the plaintiff filed an affidavit in support of the

motion from the law firm’s legal assistant responsible for scheduling. The

legal assistant explained that his mistake and clerical error resulted in the

attorney’s failure to appear at the case management conference. Another

affidavit attached to the motion for rehearing clarified that the plaintiff’s

law firm did not discover the dismissal until March 11 and that it did not

receive the order by email or mail, a situation consistent with the face of

the order, which indicated only that it was provided in open court.

The trial court denied both the plaintiff’s motion to set aside the

dismissal and the motion for rehearing, but clarified that its February 3

dismissal was an adjudication on the merits.

Under Florida Rule of Civil Procedure 1.540(b)(1), a court may relieve a

party from a final judgment or order based on “mistake, inadvertence,

surprise, or excusable neglect.” A rule 1.540(b)(1) motion “shall be filed

within a reasonable time” and “not more than 1 year after the judgment”

or order was “entered.”

A calendaring error by an attorney’s staff is one of the common reasons

that relief is granted under rule 1.540(b)(1). J.J.K. Int’l, Inc. v. Shivbaran,

985 So. 2d 66, 68–69 (Fla. 4th DCA 2008) (reversing an order denying a

rule 1.540 motion based on excusable neglect to set aside a final order

dismissing the plaintiff’s complaint with prejudice because the attorney’s

failure to appear at a special set hearing was due to the secretary’s mistake

of marking the hearing as “CANCELLED” on the attorney’s calendar);

Acosta v. Deutsche Bank Nat’l Tr. Co., 88 So. 3d 415, 417 (Fla. 4th DCA

2012) (recognizing 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) is well-supported in Florida law” and reversing

accordingly the order denying a rule 1.540(b) motion for relief from a final

summary judgment, which was entered due to attorney’s inadvertent

failure to attend the summary judgment hearing because of a paralegal’s

calendaring omission); Ocwen Loan Servicing, LLC v. Brogden, 185 So. 3d

627, 629–30 (Fla. 5th DCA 2016) (finding excusable neglect under rule

1.540(b) where attorney failed to appear at case management conference

due to a calendaring error). The five-week period from the entry of the

order of dismissal to the bringing of the motion to vacate was a “reasonable

time,” especially where the order itself does not indicate that it was served

upon the plaintiff by either email or mail. The trial court abused its

discretion in refusing to set aside the order.

Arriechi v. Bianchi Does Not Control the Outcome of This Case

American Security relies on Arriechi v. Bianchi, 318 So. 3d 4 (Fla. 4th

DCA 2021). We write to distinguish Arriechi and recede from a sentence

in the opinion.

In Arriechi, the plaintiff’s attorney failed to attend a case management

conference in January and the trial court dismissed the case. Id. at 5.

Four months later, the plaintiff sought to set aside the dismissal. Id. The

trial judge granted the motion and vacated the order of dismissal. Id. The

defendant appealed, and this court reversed the order vacating the

dismissal. Id. at 6.

Arriechi set forth this standard for the plaintiff’s attempt to set aside

the final judgment of dismissal:

To set aside the judgment the plaintiff was required to show:

“(1) the failure to file a responsive pleading was the result of

excusable neglect; (2) the moving party has a meritorious

defense; and (3) the moving party acted with due diligence in

seeking relief from the default.”

Id. at 5 (quoting Hepburn v. All Am. Gen. Constr. Corp., 954 So. 2d 1250,

1251–52 (Fla. 4th DCA 2007)). Obviously, this statement of law cannot

apply to a plaintiff seeking to avoid the dismissal of a case he filed; why

would the plaintiff have to show that there is a meritorious defense to his

own case? Although the case involved a dismissal arising from the failure

of the plaintiff’s attorney to attend a case management conference,

Arriechi’s quoted language was only applicable to a defendant’s attempt to

set aside a default final judgment.

We recede from the language in Arriechi in the block quote above that

purports to set forth the standard to be applied when a plaintiff seeks to

set aside a dismissal of a case.

We distinguish Arriechi because that case involved the absence of an

affidavit in support of the motion and a four-month delay in the plaintiff’s

attempt to set aside the judgment. The four-month delay was neither a

“reasonable time” under rule 1.540(b) nor compliant with the “due

diligence” standard in other areas of the law.

Here, the plaintiff acted

with dispatch upon learning of the dismissal.

For these reasons, we reverse and remand for further proceedings

consistent with this opinion.

Reversed and remanded.

KLINGENSMITH, C.J., WARNER, MAY, DAMOORGIAN, CIKLIN, GERBER, LEVINE,

CONNER, FORST, KUNTZ and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

For example, Hepburn, the case from which the quoted language in Arriechi

originated, this court reversed and reinstated a default final judgment because

the defendant failed to demonstrate the due diligence prong of the three-part test

by delaying four months before filing a motion to vacate the default judgment.

954 So. 2d at 1251–52.

We note that the “reasonable time” standard of rule 1.540(b) is akin to the “due

diligence” standard applicable when a defendant seeks to set aside a default final

judgment after a failure to file a responsive pleading.