SOUTHEASTERN FIDELITY INSURANCE COMPANY, APPELLANT,
v.
TRUCK INSURANCE EXCHANGE, APPELLEE
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Southeastern Fidelity Insurance Company appealed the denial of its motion for relief from a final judgment under Florida Rule of Civil Procedure 1.540, arguing that its appellate counsel did not receive notice of a dismissal order. The court reversed, finding that failure to provide notice to appellate counsel who had assumed responsibility for the case constituted excusable neglect and violated minimal fairness standards.
The court held that since appellate counsel had filed an appearance and assumed full responsibility for the case, the ends of justice required that he receive a copy of the dismissal order, and failure to do so violated minimal fairness standards and constituted excusable neglect under Rule 1.540.
[1] Relief from a final judgment under Rule 1.540 may be granted when a party demonstrates excusable neglect or inadvertence.
[2] The failure to mail a copy of an appealable order to appellate counsel can constitute a clerical mistake resulting from excusable neglect or inadvertence.
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Join FLexlaw to unlock all legal intelligence“Rule 1.540 is applied liberally to promote the ends of justice.”
Establishes the liberal standard for applying Rule 1.540 relief from judgment provisions.
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Join FLexlaw to unlock all legal intelligenceSoutheastern Fidelity's original law firm filed three complaints that were dismissed with leave to amend, then hired appellate specialist Steven Berge…
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PER CURIAM.
Southeastern Fidelity Insurance Company appeals an order denying its motion seeking, pursuant to Florida Rule of Civil Procedure 1.540, relief from a final judgment.
Three complaints filed by Southeastern were dismissed with leave to amend. The original law firm representing Southeastern then hired an appellate specialist, Steven Berger, to take over responsibility for the litigation. Berger filed a Third Amended Complaint, on his firm’s stationery, as co-counsel in the case. He and counsel for Truck Insurance Exchange, appellee, were the only attorneys to appear for the April 28, 1986, hearing on the latter’s Motion to Dismiss the Third Amended Complaint. Counsel for Truck Insurance prepared an order dismissing the Third Amended Complaint, in accordance with the court’s instructions, indicating on the order (not by instruction) that a copy was to be sent only to an associate in the law firm of appellant’s original attorneys. It is undisputed that Berger, who was retained to handle an anticipated appeal, did not receive a copy of the order of dismissal.
Berger avers, by uncontroverted affidavit, that he made numerous inquiries of co-counsel and the clerk’s office as to whether a written order of dismissal had been filed in accordance with the court’s oral ruling and was informed that no order had yet been filed. A copy of the order of dismissal, dated May 2, 1986, was discovered in the court file on August 29, 1986. The partner in the original law firm who had primary responsibility for the file also filed an affidavit stating that he had not seen the order of dismissal.
In denying the Motion for Relief from Judgment the trial court found that there was a “clear indication” that on May 5th a copy of the order was sent to an associate in the original law firm.
Rule 1.540 is applied liberally to promote the ends of justice. Rogers v. First Nat’l Bank at Winter Park, 232 So. 2d 377 (Fla.1970). As to the facts presented in this case we find instructive Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla.1979), and Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971). It was held in Town of Hialeah Gardens that trial counsel’s failure to mail a copy of the correct appealable order to appellate counsel constituted a clerical mistake resulting from excusable neglect or inadvertence within the meaning of Rule 1.540. In Wol-darsky the trial court was directed to set aside or redate a judgment so an appeal could be taken where the losing party did not receive notice of the judgment. Since Berger had filed an appearance and had assumed full responsibility of the case on behalf of the appellant for the purpose of filing an appeal, the ends of justice required that he be sent a copy of the order of dismissal. Even if a copy of the order was sent to an associate in the original law firm, that act failed to satisfy minimal fairness standards.
Reversed and remanded for further proceedings accordingly.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Hialeah Hotel, Inc. v. Woods, 778 So. 2d 314 (Fla. 3d DCA 2000)…ounty, 719 So. 2d 1258 (Fla. 1st DCA 1998); Rosso v. Golden Surf Towers Condominium Assoc., 711 So. 2d 1298 (Fla. 4th DCA 1998); Kanecke v. Lennar Homes, Inc., 543 So. 2d 784 (Fla. 3d DCA 1989); Southeastern Fidelity Ins. Co. v. Truck Ins. Exchange, 521 So. 2d 306 (Fla. 3d DCA 1988); Spanish Oaks Condominium Assoc., Inc. v. Compson of Florida, Inc., 453 So. 2d 838 (Fla. 4th DCA 1984); Wech-sler v. Wechsler, 436 So. 2d 1090 (Fla. 3d DCA 1983); Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980); Woldarsky v. W…
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Kanecke v. Lennar Homes, Inc., 543 So. 2d 784 (Fla. 3d DCA 1989)…not receive notice, the trial court was obligated to grant relief from the judgment as a matter of law. Falkner v. Amerifirst Fed. Sav. & Loan Ass’n, 489 So. 2d 758, 759 (Fla. 3d DCA 1986); accord Southeastern Fidelity Ins. Co. v. Truck Ins. Exch., 521 So. 2d 306 (Fla. 3d DCA 1988); Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980); Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971); see also Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla.1979). Reversed.…
Authorities Cited
- Town OF Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla. 1979)
- Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971)
- Inger Rogers v. First Nat'l Bank AT Winter Park, 232 So. 2d 377 (Fla. 1970)