         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.




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