DARBY L HAYES

v.

BANK OF AMERICA

Before: TRAWICK, WALSH and SANTOVENIA, JJ.

Filing # 116980834 E-Filed 11/19/2020 03:18:49 Hayes (“Appellant” or “Hayes”) appeals a default final judgment entered by the trial court on May 6, 2019 in favor of Bank of America, N.A. (the “Bank”) and against Appellant for breach of a cardholder agreement. Appellant argues, pursuant to Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), that the trial court improperly entered a default final judgment against her without making certain required findings and where no willfulness was demonstrated on the part of Appellant. Kozel presented a factual scenario where the plaintiff’s attorney did not file an amended complaint until over five months past the due date and on defendant’s motion, the circuit court dismissed the complaint with prejudice and the district court affirmed the dismissal. Id. at 817. The Florida Supreme Court in Kozel noted that dismissal with prejudice of a claim is the “ultimate sanction” and that “a fine, public reprimand, or contempt order may often be the appropriate sanction to impose on an attorney in those situations where the attorney, and not the client, is responsible for the error”. Id. at 818 (emphasis added). The Court then adopted a new set of six factors setting the standard to be followed by trial courts in determining whether dismissal with prejudice is warranted in a case. Id. However, the case below did not involve a Kozel issue. First of all, Hayes was not sanctioned for an error or omission of her attorney. Counsel for Hayes did [*3] Page 3 of 5 not even appear in the case below until after the entry of the default final judgment which is being appealed. Moreover, the record below reflects that a default final judgment was entered for Hayes’s failure to appear on two separate occasions at both a court-ordered mediation conference and at a status hearing. At a status hearing on April 22, 2019, the trial court entered an Order of Referral to County Court Mediation scheduling a mediation conference for April 29, 2019 at 1:30 pm at the Dade County Courthouse. The Order states that “if a party fails to participate in mediation…pleadings may be stricken and other sanctions may be imposed.” Hayes was clearly aware of the April 29, 2019 mediation conference because she filed with the trial court on April 24, 2019 a motion to dispense with mediation. The motion to dispense with mediation addresses the merits of the Bank’s case, but makes no mention of Hayes’s alleged inability to attend the mediation conference because of a medical issue or the effects of any medication (which arguments were made for the first time in Hayes’s motion for re-hearing regarding the default final judgment). Hayes did not set for hearing her motion to dispense with mediation. She simply failed to appear at the mediation conference. Notwithstanding her failure to appear at the courthouse on April 29, 2019 at 1:30 pm for the mediation conference, the record reflects that she did have notarized and filed at the courthouse the same day at 4:15 pm her motion to strike the Bank’s affidavit in support of its summary judgment motion and her motion to dismiss the [*4] Page 4 of 5 Bank’s summary judgment motion. The trial court also signed at the April 22, 2019 status conference a notice of hearing setting a status conference for May 6, 2019. As evidenced by the trial court’s handwritten notation on that notice of hearing in the court file, Hayes received the notice of hearing by hand delivery. The printed “Important Instructions” on the back of County Court notice of hearing forms state, inter alia, that: “[i]f you are a defendant and fail to appear for a hearing or trial on the scheduled date, in person or by attorney, a judgment by default may be entered against you.” The April 22, 2019 notice of the May 6, 2019 hearing includes that instruction as noted in the final judgment entered by the trial court. Hayes also failed to appear at the May 6, 2019 status conference. The trial court granted the Bank’s summary judgment motion at that status conference and entered the default final judgment in favor of the Bank. Hayes did not file a motion to vacate the default judgment, but instead filed a motion for rehearing which sets forth no grounds but attaches an “affidavit” from Hayes and a letter from her doctor. The motion for rehearing¹ was denied on August 6, 2019.

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

[*6] Copies Furnished to: [email protected]