Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JOSEPH T. MASSOUD, Appellant, v. STONEHEDGE RESIDENTS, INC., Appellee. No. 2D21-2561 January 20, 2023 Appeal from the County Court for Pinellas County; John Carassas, Judge. Joseph T. Massoud, pro se. Barbara Prasse-Anderson of Prasse-Anderson Law Group, Tampa, for Appellee. SLEET, Judge. Joseph Massoud, pro se, challenges the trial court's Order Denying Plaintiff's Motion to Set Aside Dismissal, Reinstate Case & Rehearing. Because Massoud raised a colorable claim in his motion, we reverse and remand for an evidentiary hearing. On March 23, 2021, Massoud brought an action for damages against Stonehedge Residents, Inc., in small claims court. On March 24, 2021, a notice of Massoud's statement of claim was sent to Stonehedge. In an order rendered June 29, 2021, the trial court dismissed Massoud's claim, stating only that "[t]his cause coming to be heard before this Court on June 22, 2021[,] and the Plaintiff having failed to appear, and the Defendant not present; IT IS ORDERED AND ADJUDGED that this cause be and it is hereby dismissed for lack of prosecution." In a letter mailed on June 24, 2021, and date stamped by the court on June 28, 2021, Massoud stated the following: On this date (22 June 21) I telephoned into the small claims court eight (8) minutes prior to the scheduled time of 10:30 a.m. When I telephoned @ approx 10:22 a.m. I was told by the agent of the small claims that the case was dismissed. In order for me, the plaintiff, Joseph T. Massoud, requires this letter of communication in order to receive the reasons of dismissal your response is requested. [sic] On June 30, 2021, the trial court received a second correspondence from Massoud, which stated the following: Each time I called in . . . one @ 10:20 a.m., and the other @ 10:28 a.m., I was told the Pre-Trial Conference was dismissed. I have obtained (copy enclosed) from Spectrum Mobile (the provider of my telephone services) a log of my outgoing calls for 22 June 2021. This log is a record of proof that I had telephoned into the small claims court pre-trial conference meeting. This conference was scheduled for 22 June 2021 at 10:30 a.m. I seriously believe that I have been denied due process and the small claims court agent erred in stating that the case is dismissed for my (the plaintiff) NO SHOW. I have already received correspondence from the defendant's attorney . . . declaring that I have lost this small claims case due to my NO SHOW. The attorney states that I will be responsible for all costs incurred by the defendant in this small claims case. I am requesting that a mis-trial be declared because the court has erred in the call for dismissal due to NO SHOW by the Plaintiff. I am requesting the small claims court correction on this matter of NO SHOW and a new Pre-Trial Conference be scheduled. 2 The trial court treated this correspondence as a Florida Rule of Civil Procedure 1.540 motion to set aside the judgment and summarily denied the motion. Initially, we note that it was proper for the trial court to treat Massoud's filing as a rule 1.540 motion to vacate. Cf. In re K.E., 335 So. 3d 226, 228 (Fla. 2d DCA 2022) ("When a party is disconnected from a remote proceeding due to a technical malfunction or some other reason beyond their control and judgment is entered against [them], the proper course of action is to file a motion to vacate the judgment alleging excusable neglect." (emphasis added)); see also Fla. R. Civ. P. 1.540(b)(1) ("On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment . . . for . . . mistake, inadvertence, surprise, or excusable neglect . . . ."). Massoud's allegation that he twice called the court minutes prior to the scheduled 10:30 a.m. start of the hearing and was told by whomever answered the phone that the case had already been dismissed constitutes a "reason beyond [his] control" as to why he was not connected to participate in the hearing scheduled for 10:30 a.m. Cf. In re K.E., 335 So. 3d at 228; see also Burke v. Soles, 326 So. 3d 83, 84 (Fla. 4th DCA 2021) (" 'Excusable neglect' as a ground for granting relief from judgment is found '[w]here inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.' " (alteration in original) (emphasis added) (quoting Locke v. Whitehead, 321 So. 3d 278, 281 (Fla. 4th DCA 2021))). However, it was error for the court to deny the motion absent an evidentiary hearing. "If a motion sets forth a colorable entitlement to relief based on excusable neglect, the trial court should either conduct a 3 limited evidentiary hearing on the motion or grant the requested relief." Burke, 326 So. 3d at 84; see also Schlechter v. Cmty. Hous. Tr. of Sarasota Cnty., Inc., 308 So. 3d 1088, 1092 (Fla. 2d DCA 2020) (same). "[A]lthough [Massoud's] pro se motion does not specifically reference rule 1.540 . . . and does not include the words 'excusable neglect,' the motion nonetheless suggests a case of excusable neglect." Burke, 326 So. 3d at 84 (concluding motion alleging that failure to appear at Zoom hearing was caused by technological issues set forth a colorable entitlement to relief based on excusable neglect). His motion alleges that he did not appear at the hearing because he was told by court personnel that dismissal had occurred prior to him even calling in. Furthermore, his allegations suggest a violation of his due process rights in that he was denied an opportunity to be heard even though, according to his allegations, he called the phone number provided prior to the noticed time of the hearing. Accordingly, the trial court abused its discretion in summarily denying the motion without holding an evidentiary hearing. See Barrett v. Busser, 310 So. 3d 1016, 1017 (Fla. 2d DCA 2020) ("We review a trial court's ruling on a motion for relief from judgment under rule 1.540(b) for an abuse of discretion."); see also Schuman v. Int'l Consumer Corp., 50 So. 3d 75, 77 (Fla. 4th DCA 2010) (reversing where "the motion for relief from judgment stated a claim of 'colorable entitlement to relief' that would require the trial court to conduct an evidentiary hearing before [ruling on] the motion"). Accordingly, we reverse the summary denial of Massoud's motion and remand for the trial court to hold a limited evidentiary hearing addressing the merits of the motion. Reversed and remanded. 4 CASANUEVA and SMITH, JJ., Concur. Opinion subject to revision prior to official publication. 5