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. 2nd 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.