Dyck-O’Neal, Inc. v. Smith

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED DYCK-O'NEAL, INC., Appellant, v. Case No. 5D15-3154 JOSEPH W. SMITH, Appellee. ________________________________/ Opinion filed September 23, 2016 Appeal from the Circuit Court for Volusia County, Sandra C. Upchurch, Judge. Susan B. Morrison, of the Law Offices of Susan B. Morrison, P.A., Tampa, for Appellant. No Appearance for Appellee. PER CURIAM. In the underlying suit for a deficiency judgment filed by Dyck-O’Neal, Inc., the trial court entered a dismissal of the action based on the parties’ failure to submit a joint status report as ordered by the trial court. Dyck-O’Neal, Inc., filed a motion to vacate the dismissal, arguing that it had no record of receiving the order to file a joint status report and that, pursuant to Florida Rule of Civil Procedure 1.540, the trial court should grant the requested relief based on excusable neglect. The motion further alleged that the statute of limitations had expired and that refiling the action was prohibited. The trial court denied the motion to vacate without holding an evidentiary hearing to give Dyck-O’Neal, Inc., the opportunity to establish excusable neglect under the rule. Dyck-O’Neal, Inc., contends this was error. Based on the record before us, we agree, reverse the order under review, and remand this case for an evidentiary hearing. REVERSED and REMANDED. LAWSON, C.J., SAWAYA and EVANDER, JJ., concur. 2

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