THE CITY OF OCALA, FLORIDA, ET AL., APPELLANTS,
v.
BONNIE M. HEATH, ET AL., APPELLEES
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The court held that the trial court did not abuse its discretion in vacating a dismissal order based on excusable neglect due to counsel's serious illness and medication effects.
[1] A former attorney's serious illness and the adverse effects of prescribed medication can constitute excusable neglect for the purpose of vacating a judgment under Florida…
[2] Excusable neglect may be found when an attorney's cognitive abilities are significantly impaired by illness and medication, leading to the neglect of a client's case.
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Join FLexlaw to unlock all legal intelligencePlaintiff's complaint was dismissed with prejudice for failure to amend. Five months later, the plaintiff filed a motion to vacate the dismissal, alle…
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COWART, Judge.
This appeal considers the definition of excusable neglect as a ground for vacating or setting aside a judgment, decree, or order pursuant to Florida Rule of Civil Procedure 1.540(b)(1). Heath retained an attorney to bring an action against the City of Ocala. The complaint was dismissed and Heath was given twenty days to amend. Heath’s counsel failed to amend and an order was entered dismissing Heath’s complaint with prejudice for failure, to amend within the time provided.
Five months later, Heath obtained new counsel and, pursuant to Rule 1.540(b),. filed a motion to vacate the order of dismissal alleging excusable neglect resulting from the serious illness of Heath’s former counsel. According to the affidavit of former counsel’s physician, during his representation of Heath former counsel was receiving medications which “caused him to have lapses of memory and have effectively precluded him from the practice of law” and former counsel’s “ability to think clearly has been greatly limited and his attention span has been very short.” The trial court vacated the order of dismissal and permitted amendment of the original complaint. We affirm.
Former counsel’s illness, from which he died shortly after the motion to vacate was filed, combined with the adverse effects of the medication he was taking, makes his neglect of Heath’s action “excusable” and justifies relief under Rule 1.540(b). Cf. Rogers v. First National Bank at Winter Park, 232 So. 2d 377 (Fla.1970) (trial court abused its discretion in refusing to grant motion to vacate dismissal order where plaintiffs’ counsel had been in poor health and had secretarial problems). The trial court did not abuse its broad discretion in vacating the order of dismissal. E.g. Jernigan v. Progressive American Insurance Co., 501 So. 2d 748 (Fla. 5th DCA), rev. denied, 513 So. 2d 1062 (Fla.1987); Kindle Trucking Co. v. Marmar Corp., 468 So. 2d 502 (Fla. 5th DCA 1985); Church v. Strickland, 382 So. 2d 419 (Fla. 5th DCA 1980).
AFFIRMED.
UPCHURCH, C.J., and ORFINGER, J., concur.
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Holsapple v. Ducker, 721 So. 2d 1254 (Fla. 5th DCA 1998)…PER CURIAM. AFFIRMED. Rogers v. First Nat. Bank at Winter Park, 232 So. 2d 377 (Fla.1970); City of Ocala v. Heath, 518 So. 2d 325 (Fla. 5th DCA1987). GRIFFIN, C. J., and DAUKSCH and . PETERSON, JJ., concur.…
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Sammons v. Greenfield, 270 So. 3d 534 (Fla. 2d DCA 2019)…tion of justice, we must take care to administer them in a manner conducive to the ends of justice"). With these principles in mind, we conclude that the Sammons' counsel made a sufficient showing of excusable neglect. See City of Ocala v. Heath, 518 So. 2d 325, 326 (Fla. 5th DCA 1987) (finding that counsel's illness combined with the effects of his medication made his neglect excusable).1 Therefore, we reverse the judgment in favor of the appellees and remand for the trial court to vacate the order dis…1 / 2
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Hidalgo v. Binder (Fla. 3d DCA 2023)…reting the facts when it, alternatively, concluded that even if the summary judgment order is a “final” order, the Binders had demonstrated excusable neglect as a result of counsel’s death. We disagree. The Binders rely on City of Ocala v. Heath, 518 So. 2d 325, 325 (Fla. 5th DCA 1987), to argue that that they should be excused as a result of counsel’s post-judgment death. Although it is true that the illness and death of counsel meets the definition of excusable neglect as a ground for vacating or set…
Authorities Cited
- Inger Rogers v. First Nat'l Bank AT Winter Park, 232 So. 2d 377 (Fla. 1970)
- Reed v. State, 501 So. 2d 748 (Fla. 1st DCA 1987)
- Jernigan v. Progressive Am. Ins. Co., 501 So. 2d 748 (Fla. 5th DCA 1987)
- Henry Church v. Strickland, 382 So. 2d 419 (Fla. 5th DCA 1980)
- Kindle Trucking Co. v. Marmar Corp., 468 So. 2d 502 (Fla. 5th DCA 1985)