IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT IN AND FOR HIGHLANDS COUNTY, FLORIDA Civil Law Division TD BANK, N.A., Case No: 16-GC-593 Plaintiff vs. - e5 S DEAN PODSTUPDA, SR., et al., 25 8 Defendant. oh bh ! ao 8 es = ORDER GRANTING DEFENDANTS’ MOTION TO DISMISSnd = GRANTING PLAINTIFF’S MOTION TO AMEND 2 This matter came before the Court August 28, 2017, for heating on the “Motion to Vacate the Order Granting an ‘Extension of Time’ and to Dismiss this Action” filed by Defendants DEAN PODSTUPKA, Sr., and MARCIA PODSTUPKA and the “Motion for Leave to File Amended Verified Complaint and Amend Case Caption” filed by Plaintiff TD BANK, N.A., in the above-styled case. Upon a review of the motions, the files and records in this case, the arguments of the parties, and the applicable law, the Court finds as follows: 1, This order’s primary focus will be on the Podstupkas’ motion, the resolution of which is purely a question of law. Plaintiff's foreclosure complaint was filed December 28, 2016. Most broadly stated, Fla. R. Civ. P. 1.070() establishes a 120-day limit for service of initial process. ‘The Podstupkas were not served during this 120-day period On June 8, 2017, Plaintiff did apply to this Court for an extension of time to serve the Defendants, which motion was granted. Defendants were served shortly after that order. ‘The 120-day period expired before Plaintiff made its request for an extension of time, As justification for the extension the motion asserted that Plaintiff “never received the issued summonses from the Court and inadvertently failed to send the issued summonses to its process server.” 2. At the outset it is important to acknowledge that Rule 1.070G) does not function as a statute of limitations. Even if a case were to be dismissed for noncompliance with the rule, the dismissal is without prejudice, and our Defendants qa tdacknowledge that.! However, this does not put an end to our discussion. As the Court sees it, the present situation poses four legal issues: (a) May the 120-day period be extended? (b) If so, under what circumstances? (c) If such circumstances exist, must the request for extension be filed before the 120 days expires?; and (4) Assuming the plaintiff alleges good cause for the extension, is an evidentiary hearing required? 3. The answer to the first question is obviously yes, given that the rule itself acknowledges the possibility. Further, as a general rule of thumb (but with exceptions) the answer to the second question is “not a lot.” In Khambaty v. Lepine, 734 So. 2d 1183 (Fla. 2d DCA 1999), the District Court of Appeal held (much as Plaintiff has argued in the present case) that Rule 1.070) must be read in conjunction with Rule 1.090(b), which governs time limits for all other rules of civil procedure and which states as follows: “When an act is required or allowed to be done at or within a specified time by ve these rules ... for cause shown the court at any time in its discretion ... with or without notice, may order the period enlarged.”” The trial court had dismissed the Khambatys’ complaint, apparently under the impression that good cause was required for the extension, It is not; instead, broad discretion is conferred upon the trial court. See also, Litwinski v, Weitzer Country Homes, Ine, 711 So. 24-1390 (Fla. 34 DCA 1988) (requiring at most “reasonable grounds”). As noted in Thomas v. Silvers, 748 So. 2d 263 (Fla, 1999), this has not always been the rule. Prior to 1999 a plaintiff would have had to show a diligent effort to effect timely service of process or some other good cause to justify an extension and avoid dismissal. Morales v. Sperry Rand Corp., 601 So. 24 538 (Fla. 1992), Absent record evidence of same the trial court was required to dismiss the action, albeit without prejudice to refile. Porolniczak v. Itkin, 703 So. 24 519 (Fla. 4% DCA 1997). 4, The careful reader may note that the Court has, thus far at least, selectively quoted from Khambaty v. Lepine without examining the full extent of that holding. In Khambaty both of the plaintiffs’ requests for extension were made within the deadlines established by the rule and the trial court’s orders. This acknowledgment leads us to the third question posed by the Podstupkas’ motion: whether a motion to extend the time of service must be filed within the 120 days. ‘The answer is a “qualified no,” for reasons explained in Khambaty, Rule 1.090(b) speaks to this situation as well. When the motion is made “after the expiration of the specified period” the trial court “may [still] permit the * Of course there will be occasions when the dismissal might as well be with prejudice because the plaintiff wil be barred from refling by the applicable statute of limitations. See, e.g., Chaffin v. Jacobson, 1793 So. 24 102 (Fla. 2d DCA 2001), which also notes that a court generally abuses its discretion when dismissing a case under such cicumstances. However, the present action could be refiled without violating the statute of imitations.act to be done when [the] failure to act was the result of excusable neglect” (emphasis supplied)? 5, At the August 28 hearing Plaintiff argued that its motion for extension of time alleged excusable neglect. “Excusable neglect” is a term most commonly seen in proceedings pursuant to Fla. R. Civ. P. 1.540(b). Indeed, there are times when case law suggests that relief from defaults, judgments, and the like is not always difficult to obtain, at least where the moving party has exercised due diligence in moving to correct the problem. This is particularly so in the case of errors by clerical or secretarial staff, such as failing to calendar hearings. See, e.g., David M, Dresdner, M.D., P.A. v. Charter Oak Fire Insurance Co., 972 So. 2d 2175 (Fla. 2d DCA 2008); Jerue v. Holladay, 945 So, 2d 589 (Fla, 2d DCA 2006); County National Bank of North Miami Beach v. Sheridan, Inc, 403 So. 2d 502 (Fla. 4" DCA 1981). This is so because, as is also emphasized in the case law on Rule 1.070(j), the law strongly favors trial onthe merits. On the other hand, excusable neglect will not be found from actions which fall within an attomey’s professional judgment, such as the giving of erroneous advice to a client, tactical errors, ignorance of rules, or mistaken understanding of the law. See, eg., Geer v. Jacobson, 880 So. 2d 717 (Fla. 2d DCA 2004); Rutshaw y. Arakas, 549 So, 2d 769 (Fla. 3d DCA 1989); Duckworth v. Duckworth, 414 So, 2d 562 (Fla. 34 DCA 1982), 6. The grounds asserted in Plaintiff's motion, though they are not set forth in great detail, appear to be the sort that would be considered excusable. This leads us to the fourth and final question suggested by the Podstupkas’ motion: Would the Court be within its rights to accept the allegations on their face, or should an evidentiary hearing have been conducted at some point? Case law indicates that an evidentiary hearing, or at very least a sworn affidavit, is required. For example, in Gary J. Rotella & Associates, PA. v. Andrews, 821 So, 2d 468 (Fla. 4" DCA 2002), the plaintiff demonstrated a lengthy — even ridiculous - history of unsuccessful attempts at service, as detailed in the opinion, Nevertheless the trial court ~ erroneously, it was held ~ unreasonably limited the term of the extension, The case is cited here because the plaintiff at very least submitted the affidavit of its process server (it is less clear whether an evidentiary or other hearing was held on its motion for extension of time). 7. This Court has also looked to cases involving Fla, R. Clv. P. 1.540(b), beginning with Geer v, Jacobson, supra, Proceedings under that rule generally require evidentiary hearings. In Geer the motion to set aside a default was unsworn and provided no significant information establishing excusable neglect. “Excusable neglect must be 2 This portion of the rule does not apply to jurisdictional time limits such as motions for new trial or rehearing or notices of appeal. The limits set forth in Rule 1.070{j) are not considered “jurisdictional” for purposes of Rule 1.090(b).proven by swom statements or affidavits. Unswom assertions of excusable neglect are insufficient.” DiSarrio v, Mills, 711 So. 2d 1355 Fla. 2d DCA 1988). The opinion does state that the movant’s attorney provided sworn testimony at the hearing, but it was found to be “woefully” inadequate, amounting to errors in judgment or ignorance of the rules. Halpern v. Houser, 949 So. 2d 1155 (Fla. 4" DCA 2007), citing Geer, similarly notes that excusable neglect must be proven by sworn statements or affidavits, not unsworn assertions, Further, Halpern discussed the holding in Steinhardt v. Intercondominium Group, Inc., 771 So. 2d 614 (Fla. 4° DCA 2000), in which the trial court found excusable neglect after two non-evidentiary hearings, apparently relying instead upon unsworn assertions of counsel. The same thing happened in Halpern. Because the present case is similarly lacking in either affidavits or sworn testimony, the Court concludes that it must be dismissed based on the reasoning set out in Halpern, Accordingly, the Court does hereby ORDER and ADJUDGE as follows: (1) Defendants’ “Motion to Vacate the Order Granting an Extension of Time and to Dismiss this Action” is hereby GRANTED without prejudice to Plaintiff to refile; (2) Plaintiff's “Motion for Leave to File Amended Verified Complaint and Amend Case Caption” is GRANTED. DONE AND ORDERED in Chambers at Sebring, Highlands County, Florida this o°Sday of September, 20.7) . G>—— MICHAEL E. RAIDEN Circuit Court Judge 16-GC-393 Copies to: Danielle Rundlett Burns, Esq., Duane Morris LLP, 5100 Town Center Circle, Suite 650, Boca Raton, FL 33486-9000 Dean and Marcia Podstupka, 2804 Wallace Dr., Sebring, FL 33872-4132