The Week in Torts – Cases from the Week of November 23, 2018

FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 47
CASES FROM THE WEEK OF NOVEMBER 23, 2018

ORDER DENYING MOTION TO DISMISS COMPLAINT ON GROUND OF SOVEREIGN IMMUNITY NOT APPEALABLE, WHERE TRIAL COURT DOES NOT DETERMINE WHETHER THE DEFENDANT CITY WAS ENTITLED TO SOVEREIGN IMMUNITY AS A MATTER OF LAW.

City of Miami v. Peralta, 43 Fla. L. Weekly D2533 (Fla. November 14, 2018):

The appellate court does not have the authority to determine in the first instance whether as a matter of law an entity is entitled to sovereign immunity. Thus, when the trial court’s order does not determine whether the allegedly sovereign entity is entitled to or is not entitled to sovereign immunity as a matter of law, a non-final appeal may not be taken pursuant to rule 9.130(a)(3)(C)(xi).

ERROR TO SET ASIDE DEFAULT JUDGMENT WHEN DEFENDANT FAILED TO PROVE THAT THE FAILURE TO FILE A RESPONSIVE PLEADING WAS THE RESULT OF EXCUSABLE NEGLECT.

Chernoff Diamond and Co. v. Gallin Associates, Inc., 43 Fla. L. Weekly D2541 (Fla. 2^nd DCA November 14, 2018):

While a trial court’s order of this kind is reviewed for a gross abuse of discretion, in this case, the record demonstrated that the defendant’s president was served with the complaint, and knew he had to respond. Yet, he put the complaint and the summons in a drawer, left for vacation and forgot about the lawsuit until he received notice of the entry of a final judgment.

Defaults will not be set aside where the defaulting party or his or her attorney (1) simply forgets or (2) intentionally ignores the necessity to take appropriate action (i.e., where the conduct could reasonably be characterized as grossly negligent or a willful and intentional refusal to act).

In this case, there was no showing of excusable neglect, and as such, the court reversed the order vacating and reinstated the default judgment.

A COURT SHOULD HOLD AN EVIDENTIARY HEARING TO ADDRESS DISPUTED ISSUES OF FACT CONCERNING WHETHER PLAINTIFF RECEIVED NOTICE OF AN IMPENDING DISMISSAL–NO RELIEF UNDER RULE 1.540(a) BECAUSE OF THE CLERK’S ALLEGED FAILURE TO MAIL NOTICE OF LACK OF PROSECUTION, BECAUSE THAT IS NOT A “CLERICAL ERROR” AS CONTEMPLATED BY THE RULE.

Purdue v. R.J. Reynolds, 43 Fla. L. Weekly D2542 (Fla. 2^nd DCA November 14, 2018):

After a “Standstill Agreement” was entered in this tobacco case, the plaintiff filed a motion to vacate the dismissal under rule 1.540. In the motion, she asserted that neither she nor her counsel had received either the Notice of Lack of Prosecution or the master dismissal order. The plaintiff filed two affidavits, of two attorneys and sought to vacate the dismissal as a clerical mistake under rule 1.540(a) either as the product of excusable neglect under rule 1.540(b)(1), or as void under rule 1.540(b)(4).

The plaintiff was not entitled to relief under rule 1.540(a) because the clerk’s alleged failure to mail the Notice of Lack of Prosecution and/or the dismissal order to her was not a “clerical error” as contemplated by that rule. The rule considers those mistakes or errors as those arising from an accidental slip or omission; not errors or mistakes by the substance of what is decided in the judgment order.

The plaintiff was not entitled to relief under rule 1.540(b)(1) because her motion was untimely under that subsection, having to have been filed within one year of the entry of the judgment order or decree.

However, the plaintiff could be entitled to relief under rule 1.540(b)(4), according to the court, if she could prove that the master dismissal order was void as having been entered without notice and opportunity to be heard in the first place.

Because plaintiff alleged she did not receive the Notice of Lack of Prosecution that warned of the pending dismissal, she stated a colorable entitlement to relief that was not refuted by the record and required a hearing by the trial court.