               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                          IN THE DISTRICT COURT OF APPEAL
                                          OF FLORIDA
                                          SECOND DISTRICT



KATHLEEN MADILL,                          )
                                          )
              Appellant,                  )
                                          )
v.                                        )      Case No. 2D18-3265
                                          )
RIVERCREST COMMUNITY                      )
ASSOCIATION, INC.,                        )
                                          )
              Appellee.                   )
                                          )

Opinion filed June 7, 2019.

Appeal from the Circuit Court for
Hillsborough County; Robert A. Foster,
Jr., Judge.

Rolando J. Santiago and Gregory S.
Grossman of RJS Law Group, Apollo
Beach, for Appellant.

Charles Evans Glausier and Melissa J.
Knight, of Glausier Knight, PLLC,
Tampa, for Appellee.


ROTHSTEIN-YOUAKIM, Judge.

              Kathleen Madill appeals from an order denying her amended motion under

Florida Rule of Civil Procedure 1.090(b)(2) for an enlargement of time to file a motion for

attorney's fees and costs. Because the trial court erred in concluding that Madill had

failed to demonstrate excusable neglect, we reverse.
              Madill was the prevailing party in a civil suit brought by Rivercrest

Community Association, Inc. Pursuant to the governing documents of the Association

and to section 720.305(1), Florida Statutes (2017), she was entitled as the prevailing

party to recover the attorney's fees and costs incurred in her defense. Because the final

judgment was filed on March 14, 2018,1 Madill had to serve her motion for fees and

costs by April 13, 2018. See Fla. R. Civ. P. 1.525 ("Any party seeking a judgment

taxing costs, attorney's fees, or both shall serve a motion no later than 30 days after

filing of the judgment . . . conclud[ing] the action as to that party."). Madill, however,

served her motion on May 2, 2018—nineteen days late.

              Along with her untimely motion for fees and costs, Madill filed a motion for

an enlargement of time pursuant to rule 1.090(b)(2) and affidavits in support. In the

motion, Madill's counsel explained that it was his law firm's practice to monitor the

court's e-filing portal, known as JAWS, for documents from the court such as the final

judgment. The firm, however, had never received notification via JAWS regarding the

entry of a final judgment; nor had it received notification via e-service from the Clerk of

the Circuit Court. Thus, the firm had been unaware of even the existence of the final

judgment until April 30, 2018, when Madill called the firm to say that she had just

learned from looking "on-line" that final judgment had been rendered in her favor.

              After receiving Madill's call, the firm's support staff had checked all service

emails, JAWS, and e-service notifications from the Clerk of the Circuit Court and could

not find any notification to the firm that a final judgment had been entered. One of the

firm's legal assistants had called the court's JAWS help desk and had been informed


              1Thefinal judgment was signed on March 13, 2018, was date stamped by
the Clerk on March 14, 2018, and was recorded on March 22, 2018.

                                             -2-
that there was no indication that the final judgment had been served via JAWS. The

help desk clerk also had checked her "notes and history" and had found nothing to

indicate that the final judgment had been served on the firm.

              Upon further investigation, another attorney with the firm—who was listed

as one of the attorneys of record but "had not worked on the litigation phase of [Madill's]

case"—discovered that he had received a copy of the final judgment as an attachment

to an email from the judge's judicial assistant (JA).2 The email looked like this:




              In his affidavit, the attorney explained: "[O]ur firm relies on [JAWS] and

the Clerk's Electronic-Service systems for receipt of court documents, pleadings, and

orders. We do not expect to receive court documents directly from a Court's Judicial

Assistant." The attorney acknowledged that he must have seen the email when it had

come in, but because the email lacked the formalities prescribed in Florida Rule of

Judicial Administration 2.516, and did not otherwise indicate that it was in regard to the



              2Madill  filed an amended motion for an enlargement of time as the firm's
investigation into the matter progressed.

                                            -3-
final judgment and because he had not been involved in the litigation phase, he "must

have glossed over it and . . . failed to open the attachment or forward it to [Madill's

counsel]."

              In its order denying the motion for an enlargement of time, the trial court

stated:

                       Whether or not [the attorney to whom the JA's email
              was addressed] was involved in the litigation phase of the
              case is immaterial to his conduct. [The attorney] is
              designated as one of two attorneys of record for the
              defendant in the Notice of Appearance . . . . The court finds
              that [the attorney] "glossing over" an email from the court
              and failing to open the attachment to the email pertaining to
              a pending case of which he is attorney of record is
              inexcusable. Moreover, to the extent the Court's email
              attaching a copy of the Final Judgment did not conform to
              the requirements of Rule 2.516 as Defendant asserts, the
              court finds that it does not negate Defendant's responsibility
              to file a timely motion. Subsection (h) of rule 2.516
              specifically applies to "Service of Orders" and section (h)(3)
              provides that the "subdivision is directory and a failure to
              comply with it does not affect the order or judgment, its
              finality, or any proceedings arising in the action."

Accordingly, the trial court concluded that Madill had failed to demonstrate excusable

neglect, denied the motion for an enlargement of time, and denied Madill's motion for

attorney's fees and costs as untimely.

                                         Analysis

              In general, "excusable neglect 'contemplate[s] that the courts would be

permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or

carelessness, as well as by intervening circumstances beyond the party's control.' "

Carter v. Lake County, 840 So. 2d 1153, 1157-58 (Fla. 5th DCA 2003) (alteration in

original) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S.




                                            -4-
380, 388 (1993), and rejecting a "more stringent excusable neglect standard for rule

1.090(b)").

              The determination of whether the failure to abide by a
              specified time limit constitutes excusable neglect is in
              essence an equitable one which should take into account all
              of the relevant circumstances, including prejudice to the
              other party, the reason for the delay, the duration of the
              delay, and whether the movant acted in good faith.

Boudot v. Boudot, 925 So. 2d 409, 416 (Fla. 5th DCA 2006) (citing Pioneer Inv. Servs.,

507 U.S. at 395).

              "[E]xcusable neglect cannot be based upon an attorney's

misunderstanding or ignorance of the law . . . ." Lyn v. Lyn, 884 So. 2d 181, 185 (Fla.

2d DCA 2004) (affirming the denial of an untimely motion for enlargement because the

delay in filing the motion for attorney's fees was caused by "her counsel's

misunderstanding or lack of knowledge of the requirements of rule 1.525"); see also

Hovercraft of S. Fla., LLC v. Reynolds, 211 So. 3d 1073, 1077-78 (Fla. 5th DCA 2017)

(reversing the trial court's order granting an untimely motion for an enlargement of time

to file a motion for attorney's fees because the failure to timely file the motion for fees

was due to counsel's misapprehension that the motion for rehearing tolled the time for

filing it). Rather, "courts are inclined to find excusable neglect 'when the error occurs

due to a breakdown in the mechanical or operational practices of the attorney's office

equipment or staff.' " Hovercraft, 211 So. 3d at 1077 (quoting Boudot, 925 So. 2d at

416); see also Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304, 307 (Fla. 4th DCA

2010) ("Excusable neglect is found 'where inaction results from clerical or secretarial

error, reasonable misunderstanding, a system gone awry[,] or any other of the foibles to




                                             -5-
which human nature is heir.' " (quoting Somero v. Hendry Gen. Hosp., 467 So. 2d 1103,

1106 (Fla. 4th DCA 1985))).

              In this case, it is troubling regardless of the extent of his actual

involvement that an attorney who was listed as counsel of record likely saw the JA's

email but "glossed over it." It goes without saying that attorneys who neglect to open

case-related emails—even facially ambiguous ones—sent directly to them by the court

do so at their own peril. But in simply concluding that the attorney's conduct in this case

was "inexcusable," the trial court failed to take all of the relevant circumstances into

account. See Boudot, 925 So. 2d at 416. The law firm had a tracking system for court

orders in place, and pursuant to that system, both the paralegal and the legal assistant

regularly reviewed emails from the Clerk of the Circuit Court and looked for notifications

from the JAWS system; they reasonably did not expect to be notified of the final

judgment from a different source. Moreover, Rivercrest Community Association, Inc.

asserted no prejudice, Madill's counsel filed the motions for fees and costs and for an

enlargement of time immediately upon realizing what had happened, and there is no

indication of bad faith. There's no question that the attorney's oversight was the result

of careless human error. But absent something more, that's exactly what excusable

neglect is.

              We hold, therefore, that the trial court abused its discretion by denying

Madill's motion for an enlargement of time due to excusable neglect. Accordingly, we

reverse the order denying Madill's motion for an enlargement of time and remand for

consideration of Madill's motion for attorney's fees and costs.

              Reversed and remanded for further proceedings.

VILLANTI and LUCAS, JJ., Concur.

                                             -6-
